The following references may be useful to help inform those wishing to provide comments.

The President's Executive Order on Reducing Poverty in America by Promoting Opportunity and Economic Mobility (April 10, 2018) provided guiding principles for public assistance programs, one of which was to improve employment outcomes and economic independence by strengthening existing work requirements for work-capable individuals. The Executive Order directed Federal agencies to review regulations and guidance documents to determine whether such documents are consistent with the principles of increasing self-sufficiency, well-being, and economic mobility. Consistent with the Executive Order and the Administration's focus on fostering self-sufficiency, as well as the Department's extensive operational experience with ABAWD waivers, the Department has determined that the standards for waivers must be strengthened so that the ABAWD work requirement is applied to ABAWDs more broadly. The Department is confident that these changes would encourage more ABAWDs to engage in work or work activities if they wish to continue to receive SNAP benefits.

The Department believes that the proposed changes reinforce the Act's intent to require these individuals to work or participate in work activities in order to receive SNAP benefits for more than 3 months in a 36 month period. Section 6(o) of the Act, entitled, “Work Requirements,” allows these individuals to meet the ABAWD work requirement by working and/or participating in a qualifying work program at least 20 hours per week (averaged monthly to 80 hours per month) or by participating in and complying with workfare. For the purposes of meeting the ABAWD work requirement, working includes unpaid or volunteer work that is verified by the State agency. The Act specifically exempts individuals from the ABAWD time limit and corresponding work requirement for several reasons, including, but not limited to, age, unfitness for work, having a dependent child, or being pregnant.

The Act authorizes waivers of the ABAWD time limit and work requirement in areas in which the unemployment rate is above 10 percent, or where there is a lack of sufficient jobs. The Department believes waivers of the ABAWD time limit are meant to be used in a limited manner in situations in which jobs are truly unavailable to ensure enforcement of the ABAWD work requirements as much as possible to promote greater engagement in work or work activities.

Immediately following the Great Recession, the vast majority of the States, including the District of Columbia, Guam, and the Virgin Islands, qualified for and implemented statewide ABAWD time limit waivers in response to a depressed labor market. In the years since the Great Recession, the national unemployment rate has dramatically declined. Despite the national unemployment rate's decline from 9.9 percent in April 2010 to 3.9 percent in April 2018, a significant number of States continue to qualify for and use ABAWD waivers under the current waiver standards. Right now, nearly half of ABAWDs live in areas that are covered by waivers despite a strong economy. The Department believes waiver criteria need to be strengthened to better align with economic reality. These changes would ensure that such a large percentage of the country can no longer be waived when the economy is booming and unemployment is low.

The Department is committed to enforcing the work requirements established by Congress and is concerned about the current level of waiver use in light of the current economy. The regulations afforded States broad flexibility to develop approvable waiver requests. The Department's operational experience has shown that some States have used this flexibility to waive areas in such a way that was likely not foreseen by the Department.

Some of the key concerns have stemmed from the combining of data from multiple individual areas to waive a larger geographic area ( e.g., a group of contiguous counties) and the application of waivers in individual areas with low unemployment rates that do not demonstrate a lack of sufficient jobs. For example, some States have maximized the number of areas or people covered by waivers by combining data from areas with high unemployment with areas with low unemployment. This grouping has resulted in the combined area qualifying for a waiver when not all individual sub-areas would have qualified on their own. States have combined counties with unemployment rates under 5 percent with counties with significantly higher unemployment rates in order to waive larger areas. For example, current regulations required the Department to approve a State request to combine unemployment data for a populous county with a high unemployment rate of over 10 percent with the unemployment data of several other less populous counties with very low unemployment rates that ranged between 3 and 4 percent. Other States have combined data from multiple areas that may only tenuously be considered an economic region. In some cases, States have grouped areas that are contiguous but left out certain low-unemployment areas that would otherwise logically be considered part of the region. In this manner, States have created questionable self-defined economic areas with gaping holes to leverage the flexibility of the regulations.

The Department has also noted that, despite the improving economy, the lack of a minimum unemployment rate has allowed local areas to qualify for waivers based solely on having relatively high unemployment rates as compared to national average, regardless of how low local areas unemployment rates fall. Since the current waiver criteria have no floor, a certain percentage of States will continue to qualify for waivers even if unemployment continues to drop.

It is the Department's understanding that the intent of Congress in passing the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 was to provide SNAP to unemployed ABAWDs on a temporary basis (3 months in any 3-year period) with the expectation that they work and/or engage in a work program at least 20 hours per week, or participate in workfare, to receive SNAP on an ongoing basis. The Department is committed to implementing SNAP as Congress intended and believes that those who can work should work. The widespread use of waivers has allowed some ABAWDs to continue to receive SNAP benefits while not meeting the ABAWD work requirement for longer than 3 months. The proposed rule addresses these areas of concern and places safeguards to avoid approving waivers that were not foreseen by Congress and the Department, and to restrict States from receiving waivers in areas that do not clearly demonstrate a lack of sufficient jobs.

As stated above, given the widespread use of ABAWD waivers during a period of historically low unemployment, the Department believes that the current regulatory standards should be reevaluated. Based on the Department's approximately two decades' experience with reviewing ABAWD waivers, the Department is proposing that the standards for approving these waivers be updated to ensure the waivers are applied on a more limited basis. The application of waivers on a more limited basis would encourage more ABAWDs to take steps towards self-sufficiency.

The Department proposes stricter criteria for ABAWD waiver approvals that would establish stronger, updated standards for determining when and where a lack of sufficient jobs justifies temporarily waiving the ABAWD time limit. The proposed rule would also ensure the Department only issues waivers based on representative, accurate, and consistent economic data, where it is available. Limiting waivers would make more ABAWDs subject to the time limit and thereby encourage more ABAWDs to engage in meaningful work activities if they wish to continue to receive SNAP benefits. The Department recognizes that long-term, stable employment provides the best path to self-sufficiency for those who are able to work. The Department believes it is appropriate and necessary to encourage greater ABAWD engagement with respect to job training and employment opportunities that would not only benefit ABAWDs, but would also save taxpayers' money. The Department and the States share a responsibility to help SNAP participants—especially ABAWDs—find a path to self-sufficiency. Through the stricter criteria for waiver approvals, the Department would encourage greater engagement in meaningful work activities and movement toward self-sufficiency among ABAWDs, thus reducing the need for nutrition assistance.

Current regulations at 7 CFR 273.24(f) set standards and requirements for the data and evidence that States must provide to FNS to support a waiver request. States enjoy considerable flexibility to make these waiver requests pursuant to the current regulations. For example, these regulatory standards give States broad flexibility to define the waiver's geographic scope. The discretion for States to define areas allows waivers based on data for combined areas that are not necessarily economically tied. An economically tied area is an area within which individuals can reside and find employment within a reasonable distance or can readily change employment without changing their place of residence. In addition, while the current regulations establish criteria for unemployment data that rely on standard Bureau of Labor Statistics (BLS) data or methods, the regulations also allow States to rely on alternative, less robust economic indicators, which include data other than unemployment data from BLS, to demonstrate a lack of sufficient jobs. Moreover, the waiver standards allow areas within States to qualify for waivers as a result of unemployment rates relative to the national average, without consideration for whether the national or local area unemployment rate is high or low. Put differently, under the current regulations, which do not include a local unemployment rate floor, even if the national unemployment rate falls, a particular area's unemployment rate may support a waiver if that area's unemployment rate is low but sufficiently higher than the national average. As a result of these and other shortcomings, the current regulations give States an opportunity to qualify for waivers and avoid the ABAWD time limit when economic conditions do not justify such relief. For these reasons, the Department believes that the waiver standards under this proposed rule will better identify areas that do not have a sufficient number of jobs to provide employment for ABAWDs.

As of September 2018, the national unemployment rate is the lowest unemployment rate since 1969; however, States continue to request and qualify for ABAWD waivers based on the current waiver criteria, which define the lack of sufficient jobs in an area too broadly. In April 2010, the national unemployment rate stood at 9.9 percent. From 2010 through 2013, the vast majority of States qualified for and continued to implement statewide ABAWD time limit waivers. SNAP participation peaked at an average of 47.6 million recipients per month in FY 2013 and has gradually declined since then. In July 2013, the national unemployment rate was 7.3 percent; 45 ABAWD time limit waivers covered the entire State, 1 and 6 waivers covered specific areas within the State. In April 2018, SNAP participation totaled 39.6 million participants, and the national unemployment rate stood at 3.9 percent. In April 2018, 8 waivers applied to an entire State, and 28 covered specific areas within a State. Although the national unemployment rate has dropped from 9.9 percent in April 2010 to 3.9 percent in April 2018, many States continue to qualify for and use ABAWD time limit waivers under the current waiver standards, and nearly half of all ABAWDs live in areas that are covered by waivers.

The Department is concerned that ABAWD time limit waivers continue to cover significant portions of the country and are out of step with a national unemployment rate hovering at less than 4 percent. Since the current waiver criteria have no floor, a certain percentage of States will continue to qualify for waivers even if unemployment continues to drop. In other words, regardless of how strong the economy is, the criteria are written in such a way that areas will continue to qualify even with objectively low unemployment rates. Many currently-waived areas qualified based on 24-month local unemployment rates below 6 percent.

The current criteria for waiver approval permit States to qualify for waivers without a sufficiently robust standard for a lack of sufficient jobs. The waiver criteria should be updated to ensure States submit data that is more representative of the economic conditions in the requested areas. Such reforms would make sure the Department issues waivers based on representative, accurate, and consistent economic data.

This proposed rule would set clear, robust, and quantitative standards for waivers of the ABAWD time limit. The proposal would also: Eliminate waivers for areas that are not economically tied together; eliminate the ability of an area to qualify for a waiver based on its designation as a Labor Surplus Area (LSA) by the Department of Labor; limit the use of alternative economic indicators to areas for which standard data is limited or unavailable, such as Indian Reservations and U.S. Territories; and provide additional clarity for States regarding the waiver request process. The proposed changes would ensure the Department issues waivers only to provide targeted relief to areas that demonstrate a lack of sufficient jobs or have an unemployment rate above 10 percent and that the ABAWD time limit encourages SNAP participants to find and keep work if they live in areas that do not lack sufficient jobs.

On February 23, 2018, the Department published an Advanced Notice of Public Rulemaking (ANPRM) entitled “Supplemental Nutrition Assistance Program: Requirements and Services for Able-Bodied Adults Without Dependents” (83 FR 8013) to seek public input to inform potential policy, program, and regulatory changes that could consistently encourage ABAWDs to obtain and maintain employment and thereby decrease food insecurity. The Department specifically asked whether changes should be made to: (1) The existing process by which State agencies request waivers of the ABAWD time limit; (2) the information and data States must provide to support the waiver request; (3) the Department's implementation of the waiver approval; and (4) the waiver's duration. The ANPRM generated nearly 39,000 comments from a range of stakeholders including private citizens, government agencies and officials, food banks, advocacy organizations, and professional associations.

The comments addressed the broad scope of topics covered by the ANPRM. Comments about the ABAWD waiver included diverse perspectives, ranging from those who supported stricter waiver approval requirements to those who favored maintaining or expanding the criteria for waiver approval. Many commenters favored no change or expressed support for greater flexibility. Other commenters identified a number of areas of concern with current practices, including the use of waivers by States to waive the ABAWD work requirement and avoid promoting work, waiving areas with relatively low unemployment rates, and allowing the use of certain metrics for waiver approvals.

The Department received more than 3,500 comments regarding potential reforms to the ABAWD time limit and waivers of the time limit through the Department's request for information (RFI) entitled, “Identifying Regulatory Reform Initiatives” published July 17, 2017 (82 FR 32649). This RFI requested ideas on how the Department can provide better customer service and remove unintended barriers to participation in the Department's programs in ways that least interfere with the Department's customers and allow the Department to accomplish its mission. The Department specifically requested ideas on regulations, guidance documents, or any other policy documents that require reform. While commenters disagreed with certain SNAP provisions outlined previously, specific changes to regulations and policies were not provided. The Department received a range of comments to the RFI in addition to the comments listed above that are not relevant to this proposed rule.

The Department believes current regulations at 7 CFR 273.24(c) and 7 CFR 273.24(f) should be updated and strengthened. The proposed rule focuses on updating the standards for ABAWD waivers. Current regulations at 7 CFR 273.24(f) set standards and requirements for the data and evidence that States must provide to FNS to support an ABAWD waiver request. States enjoy considerable flexibility to make these waiver requests pursuant to the current regulations. This flexibility has resulted in the widespread use of waivers during a period of low unemployment, which reduces the application of the work requirement.

The Department proposes several changes. First, the proposed rule would limit the ability of areas to qualify for waivers as local economies and the overall national economy improve. Second, the proposed rule would no longer allow State agencies to combine unemployment data from areas with high unemployment with areas with lower unemployment and more plentiful employment opportunities in order to maximize the area waived. Instead, the proposed rule would ensure the Department issues waivers only to economically tied areas that meet the new criteria defining what is meant by a lack of sufficient jobs. The proposed rule would also limit the duration of waivers to one year, and curtail the use of less robust data to approve waivers. The subsequent sections provide details about the changes proposed in this rule.

The Department proposes that the rule, once finalized, would go into effect on October 1, 2019, which is the beginning of federal fiscal year 2020. All waivers in effect on October 1, 2019, or thereafter, would need to be approvable according to the new rule at that time. Any approved waiver that does not meet the criteria established in the new rule would be terminated on October 1, 2019. States would be able to request new waivers if the State's waiver is expected to be terminated. The Department requests feedback from States regarding the implementation date. In addition, the Department proposes clarifying that any State agency's waiver request must have the Governor's endorsement to ensure that such a critical request is supported at the highest levels of State government.

The Department proposes updating criteria for ABAWD time limit waivers to improve consistency across States and only allow approvals in areas where waivers are truly necessary. These revisions would include the establishment of core standards that would allow a State to reasonably anticipate whether it would receive approval from the Department. These core standards would serve as the basis for approval for the vast majority of waiver requests, save for areas with exceptional circumstances or areas with limited data or evidence, such as Indian Reservations and U.S. Territories. The proposed rule would continue to allow approvals for waivers based on data from BLS or a BLS-cooperating agency that show an area has a recent, 12-month average unemployment rate over 10 percent.

The proposed rule emphasizes that the basis for approval of waivers would be sound data and evidence that primarily relies on data from BLS or BLS-cooperating agencies. Any supporting unemployment data provided by the State would need to rely on standard BLS data or methods. BLS unemployment data is generally considered to be reliable and robust evidence for evaluating labor market conditions. BLS is an independent Federal statistical agency that is required to provide accurate and objective statistical information and is the principal fact-finding agency for the Federal government in the broad field of labor economics and statistics. It collects, processes, analyzes, and disseminates essential statistical data for the public and Federal agencies.

The proposed core standards for waiver approval would be codified in 7 CFR 273.24(f)(2).

The Department does not propose changes to the regulations for waivers when an area has an unemployment rate over 10 percent. The proposed rule would continue to allow approvals for waivers based on data from BLS or a BLS-cooperating agency that show an area has a recent, 12-month average unemployment rate over 10 percent.

Current regulations at 7 CFR 273.24(f)(2) and (3) provide for waiver approvals for requested areas with an average unemployment rate at least 20 percent above the national average for a recent 24-month period, beginning no earlier than the same 24-month period that DOL uses to determine LSAs for the current fiscal year (otherwise known as the “20 percent standard”). Under the current regulations, the Department adopted the 20 percent standard, in addition to LSA designation, to provide States with the flexibility to support waivers for areas in the country that are not considered by DOL for LSA designation and to allow States to use a more flexible 24-month reference period.

There are key differences between the two standards. DOL's criteria for LSAs require an average unemployment rate that is at least 20 percent above the national average and at least 6 percent for the preceding two calendar years (a 24-month period). DOL's local unemployment rate floor of 6 percent prevents areas with unemployment rates below that threshold from qualifying as LSAs. The 20 percent standard is the same, except that it allows for a flexible 24-month data reference period (no earlier than that which is used for LSAs) and it does not include any unemployment rate floor.

Based upon operational experience, the Department has observed that, without an unemployment rate floor, local areas will continue to qualify for waivers under the Department's 20 percent standard based on high unemployment relative to the national average even as local unemployment rates fall to levels as low as 5 to 6 percent (depending upon the national rate). The Department believes that amending the waiver regulations to include an unemployment floor is a critical step in achieving more targeted criteria. While the 20 percent standard is similar to the calculation of an LSA, the Department believes it is appropriate to request public comment to explore a floor that is designed specifically for ABAWD waivers.

The Department believes a floor should be set for the 20 percent standard so that areas do not qualify for waivers when their unemployment rates are generally considered to be normal or low. The “natural rate of unemployment” is the rate of unemployment expected given normal churn in the labor market, with unemployment rates lower than the natural rate tending to result in inflationary pressure on prices. Thus, unemployment rates near or below the “natural rate of unemployment” are more indicative of the normal delay in unemployed workers filling the best existing job opening for them than a “lack of sufficient jobs” in an area. Generally, the “natural rate of unemployment” hovers around 5 percent. The Department believes that only areas with unemployment rates above the “natural rate of unemployment” should be considered for waivers. The Department seeks to establish a floor that is in line with the Administration's effort to encourage greater engagement in work and work activities. The Department believes that the 7 percent floor for the 20 percent standard would strengthen the standards for waivers so that the ABAWD work requirement would be applied more broadly and fully consider the “lack of sufficient jobs” criteria in the statute. Furthermore, this aligns with the proposal in the Agriculture and Nutrition Act of 2018, H.R. 2, 115th Cong. § 4015 (as passed by House, June 21, 2018). As stated previously, the Department seeks to make the work requirements the norm rather than the exception to the rule because of excessive use of ABAWD time limit waivers to date. Using the proposed rule's 7 percent floor for this criterion and eliminating waiver approvals based on an LSA designation (as well as utilizing the proposed limit on combining areas discussed below), an estimated 11 percent of ABAWDs would live in areas subject to a waiver. Currently, approximately 44 percent of ABAWDs live in a waived area. The Department views the proposal as more suitable for achieving a more comprehensive application of work requirements so that ABAWDs in areas that have sufficient number of jobs have a greater level of engagement in work and work activities, including job training. In sum, the proposed rule modifies the current waiver criterion so that an area must have an average unemployment rate at least 20 percent above the national average and at least 7 percent for a recent 24-month period, beginning no earlier than the same 24-month period that DOL uses to determine LSAs for the current fiscal year, to qualify for a waiver. The 7 percent floor prevents a requested area with an unemployment rate 20 percent above the national average, but below 7 percent, from qualifying for a waiver.

Although the Department believes the local unemployment floor should be set at 7 percent to best meet its goals of promoting self-sufficiency and ensuring areas with unemployment rates generally considered normal are not waived, it is requesting evidence-based and data-driven feedback on the appropriate threshold for the floor. Specifically, the Department requests feedback on which unemployment rate floor—6 percent, 7 percent, or 10 percent—would be most effective at limiting waivers consistent with the Act's requirement that waivers be determined based on a lack of sufficient jobs.

The Department is interested in public comments on establishing an unemployment floor of 6 percent, which would be consistent with DOL standards for LSAs. A 6 percent floor would require that an area demonstrate an unemployment rate of at least 20 percent above the national average for a recent 24-month period and at least a 6 percent unemployment rate for that same time period in order to receive waiver approval. The 6-percent floor also bears a relationship to the “natural rate of unemployment.” in that it is approximately 20 percent higher. As previously noted, the “natural rate of unemployment” generally hovers around 5 percent, meaning that 20 percent above that rate is 6.0 percent. In combination with other changes in the proposed rule, the Department estimates that a 6-percent floor would reduce waivers to the extent that approximately 24 percent of ABAWDs would live in waived areas. The Department is concerned that too many areas would qualify for a waiver of the ABAWD time limit with a 6 percent floor and that too few individuals would be subject to the ABAWD work requirements, which can be met through working or participating in a work program or workfare program, thereby moving fewer individuals towards self-sufficiency.

The Department would also like to receive comments on establishing a floor of 10 percent for the 20 percent standard. A 10-percent floor would allow for even fewer waivers than the other options and would result in the work requirements being applied in almost all areas of the country. In combination with other changes in the proposed rule, the Department estimates that a 10-percent floor would reduce waivers to the extent that approximately 2 percent of ABAWDs would live in waived areas.

It is important to note that a 10-percent floor would be distinct from the criteria for approval of an area with an unemployment rate of over 10 percent. The 10-percent unemployment floor would be attached to the 20 percent standard, which would mean an area would require an average unemployment rate 20 percent above the national average for a recent 24-month period and at least 10 percent for the same period; the other similar, but separate standard requires an area to have an average unemployment rate of over 10 percent for a 12-month period.

Based on the Department's analysis, nearly 90 percent of ABAWDs would live in areas without waivers and would be encouraged to take steps towards self-sufficiency if a floor of 7 percent was established. In comparison, a 6 percent floor would mean that 76 percent of ABAWDs would live in areas without waivers and a 10 percent floor would mean that 98 percent of ABAWDs would live in areas without waivers. A higher floor allows for the broader application of the time limit to encourage self-sufficiency.

The Department is thus requesting comments on the various proposed options for setting a floor for the 20 percent standard. This will ensure that the Department fully considers the range of evidence available to establish a floor that meets the need of evaluating waivers.

Under the proposed rule, the Department would continue to approve a State's waiver request that is based upon the requesting State's qualification for extended unemployment benefits, as determined by DOL's Unemployment Insurance Service. Extended unemployment benefits are available to workers who have exhausted regular unemployment insurance benefits during periods when certain economic conditions exist within the State. The extended benefit program is triggered when the State's unemployment rate reaches certain levels. Qualifying for extended benefits is an indicator, based on DOL data, that a state lacks sufficient jobs. Current regulations include this criterion as evidence of lack of sufficient jobs. The Department has consistently approved waivers based on qualification for extended unemployment benefits because it has been a clear indicator of lack of sufficient jobs and an especially responsive indicator of sudden economic downturns, such as the Great Recession. Therefore, the Department proposes to continue to include this criterion, reframed as a core standard for approval in this proposed regulation.

The three provisions described above (the unemployment rate over 10 percent standard, the 20 percent standard, and the qualification for extended unemployment benefits standard), would be considered the core standards for approval and, thus, the basis for most conventional waiver requests and approvals. The core standards would be codified in 7 CFR 273.24(f)(2).

The proposed core standards would not include some of the current ABAWD time limit waiver criteria that are rarely used, sometimes subjective, and not appropriate when other more specific and robust data is available, such as unemployment rates from BLS. These excluded criteria include a low and declining employment-to-population ratio, a lack of jobs in declining occupations or industries, or an academic study or other publication(s) that describes an area's lack of jobs. These standards would no longer suffice for a waiver's approval if BLS data is available. These proposed changes would ensure that ABAWD time limit waiver requests are only approved in areas where waivers are truly necessary.

The proposed rule would emphasize sound data and evidence that primarily relies on BLS and other DOL data for waiver approvals. Any supporting unemployment data that a State provides must, under the core standards, rely on standard data from BLS or a BLS-cooperating agency.

The proposed core standards would form the primary basis for determining waiver approval. However, the rule also proposes that the Department can approve waiver requests in exceptional circumstances based on other data and evidence. The Department proposes that other data and evidence still primarily rely on BLS unemployment data. Such alternative data would only be considered in exceptional circumstances or if BLS data is limited, unavailable, or if BLS develops a new method or data that may be applicable to the waiver review process. Given that economic conditions can change quickly, the Department believes it is appropriate to maintain a level of flexibility to approve waivers as needed in extreme, dynamic circumstances. Such waiver requests must demonstrate that an area faces an exceptional circumstance and provide data or evidence that the exceptional circumstance gives rise to an area not having a sufficient number of jobs to provide employment for the individuals in the area. For example, an exceptional circumstance may arise from the rapid disintegration of an economically and regionally important industry or the prolonged impact of a natural disaster. A short-term aberration, such as a temporary closure of a plant, would not fall within the scope of exceptional circumstances. For waiver requests in exceptional circumstances, the State agency may use additional data or evidence other than those listed in the core standards to support its need for a waiver under exceptional circumstances. In these instances, the State may provide data from the BLS or a BLS-cooperating agency showing an area has a most recent three-month average unemployment rate over 10 percent. This provision to strengthen the standards for waivers would be codified in 7 CFR 273.24(f)(3).

Current regulations at 7 CFR 273.24(f)(6) and the Department's policy guidance provide States with the discretion to define the areas to be covered by waivers. A State may request that a waiver apply to the entire State (statewide) or only to certain areas within the State ( e.g., individual counties, cities, or towns), as long as the State provides data that corresponds to each requested area showing that the area meets one of the qualifying standards for approval.

The proposed rule would eliminate statewide waiver approvals when substate data is available through BLS, except for those waivers based upon a State's qualification for extended unemployment benefits as determined by DOL's Unemployment Insurance Service. The Department proposes this change so that waivers of the ABAWD time limit are more appropriately targeted to those particular areas in which unemployment rates are high. Since statewide unemployment figures may include areas in which unemployment rates are relatively low, the Department believes that a more targeted approach would ensure that waivers exist only in areas that do not have a sufficient number of jobs to provide employment for the individuals living in that specific area. This proposed change further supports the Department's goal that more individuals are subject to the ABAWD time limit and work requirement, which can be met through working or participating in a work program or workfare program, consistent with the intent of the Act.

The Department requests public comment specific to the proposed restriction on statewide waivers, especially with consideration to how the change may affect different States in different ways based upon geographic size, population, and other factors.

These changes would be codified in 7 CFR 273.24(f)(4).

Current regulations at 7 CFR 273.24(f)(6) and the Department's policy guidance provide States considerable flexibility to define areas covered by ABAWD waivers. This flexibility allows States to combine data to group two or more substate areas, such as counties, together (otherwise referred to as “grouped” areas or “grouping”). In order to meet the requirement for qualifying data or evidence that corresponds to the requested area, States use the unemployment and labor force data from the individual areas in the group to calculate an unemployment rate representative of the whole group. States can only group areas and support approval based on qualifying unemployment data. Under current regulations, States must demonstrate that the areas within any such group are contiguous and/or share the same Federal- or State-recognized economic region. For example, two or more contiguous counties could be grouped together, and the group's average unemployment rate could be calculated, by combining the unemployment and labor force data from each individual county.

The Department's existing general conditions for the grouping of areas—that the areas must be either contiguous and/or share the same economic region—were intended to ensure that the areas grouped together are economically tied. However, in practice, the Department has learned that its standards for combining areas provide too much flexibility for State agencies and are often ineffective at ensuring that States are only grouping areas that are economically tied. For example, some States have grouped nearly all contiguous counties in the State together while omitting a few counties with relatively low unemployment in order to maximize the waived areas in the State. In other cases, States have grouped certain towns together that share the same economic region while omitting others with relatively low unemployment from the group, thereby maximizing the waived areas in the State.

The proposed rule would prohibit States from grouping areas, except for areas that are designated a Labor Market Area (LMA) by the Federal government. 2 This change would ensure that only areas that are economically tied are grouped together. Moreover, the proposed rule would require States to include the unemployment data representative of all areas in the LMA in the State. As a result, States would be unable to omit certain areas within the LMA in the State for the purposes of achieving a qualifying unemployment rate for part of an LMA. These changes would be codified in 7 CFR 273.24(f)(5).

The Department requests public comments on whether it should include Labor Market Areas (LMAs) defined by the Federal government as the basis for grouping areas or whether it should prohibit grouping entirely. If grouping were prohibited entirely, waived areas would be limited to individually qualifying jurisdictions with corresponding data (for example, counties and their equivalents, cities, and towns). The Department requests comments on the potential impacts of either policy. The Department believes that only allowing the use of Federally designated LMAs will limit the combination of areas that are not contiguous and economically integrated. The Department is interested in feedback on whether the LMA definition will target waivers to jurisdictions with a demonstrable lack of sufficient jobs without including jurisdictions that do not lack sufficient jobs.

The proposed approach would limit the duration of waiver approvals. Under the current regulations, the Department typically approves waivers for one year. However, the current regulations allow the Department to approve shorter or longer waivers in certain circumstances. The Department proposes limiting a waiver's duration to one year, but continuing to allow a waiver for a shorter period at a State's request. The Department believes that a one year waiver term allows sufficient predictability for States to plan and implement the waiver; at the same time, a one-year waiver term ensures that the waiver request reflects current economic conditions.

The proposed rule would also prioritize recent data by preventing States from requesting to implement waivers late in the Federal fiscal year, which broadens the available data reference period. Through operational experience, the Department has observed that several States that have historically requested 12-month waivers on a fiscal year basis ( i.e., October 1 of one year through September 30 of the following year), have shifted their waiver request and implementation dates to later in the fiscal year ( e.g., September 1 through August 31). The States that have made this shift have supported their waivers based on the 20 percent standard. In the current regulations, the 24-month data reference period for this waiver is tied to the fiscal year and only updates each year on October 1. The Department has noticed that as the unemployment rates have improved, States that shift the waiver operational period to later in the fiscal year have been able to capitalize on older data and qualify for waivers of the ABAWD time limit for additional time. States are able to take advantage of this loophole if their unemployment rates for the requested areas have been improving relative to the national average. As a result, these States are able to obtain a waiver and maximize the areas waived into the next fiscal year, using data that is no longer appropriate as of the October 1 update.

To curtail this practice, the Department proposes that waivers based on the 20 percent standard would not be approved beyond the fiscal year in which the waiver is implemented. In addition, these waivers must utilize data from a 24-month period no less recent than that DOL used in its current fiscal year LSA designation. Such an approach ensures waivers rely on sufficiently recent data for the current fiscal year and prevents States from using older data, which may not accurately reflect current economic conditions.

This provision would streamline the implementation of the program and would be codified in 7 CFR 273.24(f)(6).

Current practices provide flexibility to State agencies to rely on alternative data sources regardless of whether the area has corresponding BLS unemployment data available. Currently, the Department may approve requests supported by an estimated unemployment rate of an area based on available data from BLS and Census Bureau's American Community Survey (ACS), a low and declining employment-to-population ratio, a lack of jobs as a consequence of declining occupations or industries, or an academic study or other publication describing the area's lack of a sufficient number of jobs. At times, State agencies will use these alternative data sources to justify a waiver request even when the corresponding BLS data shows that the unemployment rate in the area is relatively low. As stated previously, the Department believes that waivers of the ABAWD time limit should be limited to only circumstances in which the area clearly does not have a sufficient number of jobs to provide employment for the individuals. By not restricting the use of these alternative to areas with limited data or evidence, the Department has permitted States to take advantage of these alternative data sources, when BLS employment data is readily available.

Under the proposed rule, all of these criteria would only be applicable to areas for which BLS or a BLS-cooperating agency data is limited or unavailable, such as a reservation area or U.S. Territory. In these areas, the Department could approve requests supported by an estimated unemployment rate of an area based on available data from BLS and ACS, a low and declining employment-to-population ratio, a lack of jobs as a consequence of declining occupations or industries, or an academic study or other publication describing the area's lack of a sufficient number of jobs. Waiver requests for an area for which standard data from BLS or a BLS- cooperating agency is limited or unavailable would not be required to conform to the criteria for approval proposed under paragraphs (f)(2), (f)(3), (f)(4), (f)(5), and (f)(6). Additionally, the Department would consider other data in line with BLS methods or considered reliable. This allows for flexibility if new methods or data are developed for Indian Reservation or U.S. Territory regions currently with limited or no data.

Using an estimated unemployment rate based on available data from BLS and ACS is part of current practice. The Department proposes codifying this criteria in the regulations only for areas with limited data or evidence, such as a reservation area or U.S. Territory. Currently, States often estimate unemployment rates for reservation areas by applying data from ACS to available BLS data. In addition, some tribal governments generate their own labor force and/or unemployment data, which would remain acceptable to support a waiver.

These changes would be codified in 7 CFR 273.24(f)(7).

The proposed rule would eliminate three provisions in current regulations: The designation as an LSA as a criterion for approval; the implementation of waivers before approval; and the historical seasonal unemployment as a criterion for approval. These provisions are eliminated to ensure that the ABAWD work requirement is applied in accordance with the Department's goal to strengthen work requirements.

The proposed rule would no longer allow an area to qualify for a waiver based on DOL's Employment and Training Administration (ETA) designation of the area as an LSA for the current fiscal year. This change is central to the Department's efforts to raise the standards by which it determines whether an area is lacking a sufficient number of jobs to provide employment for ABAWDs in order to require more ABAWDs to engage in work, work training, or workfare if they wish to receive SNAP. As explained in a previous section, DOL's criteria for LSAs require an average unemployment rate that is at least 20 percent above the national average and at least 6 percent for the preceding two calendar years (a 24-month period). The Department is eliminating LSA designation as a basis for waiver approval because LSAs are determined using a minimum unemployment rate floor of 6 percent, whereas the Department proposes using a minimum unemployment rate of 7 percent for its similar, but more flexible, 20 percent standard. Continuing to allow LSA designation as a basis for waiver approval would be inconsistent. Moreover, LSAs are not designated for all different types of areas across the country, and having an LSA criteria separate from the 20 percent criteria could be seen as unnecessary moving forward.

The proposed rule would bar States from implementing a waiver prior to its approval. Though rarely used, current regulations allow a State to implement an ABAWD waiver as soon as the State submits the waiver request based on certain criteria. 3 By removing the current pertinent text in 273.24(f)(4), the proposed rule would require States to request and receive approval before implementing a waiver. This would allow the Department to have a more accurate understanding of the status of existing waivers and would provide better oversight in the waiver process. It would also prevent waivers from being implemented until the Department explicitly reviewed and approved the waiver.

The proposed rule would also remove the criterion of a historical seasonal unemployment rate over 10 percent as a basis for approval. Historical seasonal unemployment does not demonstrate a prolonged lack of sufficient number of jobs to provide employment for the individuals. Historical seasonal unemployment rates, by definition, are limited to a relatively short period of time each year. Nor does a historical seasonal unemployment rate indicate early signs of a declining labor market. Historical seasonal unemployment rates are cyclical rather than indicative of declining conditions. Based on operational experience, the Department has not typically seen the use of this criterion by States. The Department has not approved a waiver under this criterion in more than two decades. For these reasons, the Department proposes removing a historical seasonal average unemployment rate as a way to qualify for a waiver.

In addition, as stated previously, the proposed rule would no longer provide for statewide waivers except for those waivers approved based upon a state's qualification for extended unemployment benefits.

The proposed rule would end the unlimited carryover and accumulation of ABAWD percentage exemptions, previously referred to as 15 percent exemptions before the enactment of the Agriculture Improvement Act of 2018. Upon enactment, Section 6(o)(6) of the Act provides that each State agency be allotted exemptions equal to an estimated 12 percent of “covered individuals,” which are the ABAWDs who are subject to the ABAWD time limit in the State in Fiscal Year 2020 and each subsequent Fiscal Year. States can use these exemptions available to them to extend SNAP eligibility for a limited number of ABAWDs subject to the time limit. When one of these exemptions is provided to an ABAWD, that one ABAWD is able to receive one additional month of SNAP benefits. The Act and current regulations give States discretion whether to use these exemptions, and, as a result, some States use the exemptions that are available to them and others do not.

Each fiscal year, the Act requires the Department to estimate the number of exemptions that each State be allotted and to adjust the number of exemptions available to each State. Based on the Act's instructions, the regulations provide the specific formulas that the Department must use to estimate the number of exemptions, which are referred to as “earned” exemptions, and to adjust the exemptions available to the State each year. The proposed rule would not change any part of the calculation that the Department follows to estimate earned exemptions, or any other part of 273.24(g). The proposed rule would only change the calculation that the Department uses to adjust the number of exemptions available for each fiscal year at 7 CFR 273.24(h).

The regulation's current interpretation of Section 6(o)(6)(G) of the Act, which requires the adjustment of exemptions, causes unused exemptions to carry over and accumulate from one year to the next, unless the State uses all of its available exemptions in a given year. For FY 2018, States earned approximately 1.2 million exemptions, but had about an additional 7.4 million exemptions available for use due to the carryover of unused exemptions from previous fiscal years. The Department views the carryover of significant amounts of unused exemptions to be an unintended outcome of the current regulations. The Department is concerned that such an outcome is inconsistent with Congressional intent to limit the number of exemptions available to States each year. Concerns about the carryover of exemptions were also expressed by the September 2016, USDA Office of the Inspector General (OIG) audit report “FNS Controls Over SNAP Benefits for Able-Bodied Adults Without Dependents.” Therefore, the Department proposes revising 7 CFR 273.24(h) to end the unlimited carryover of unused percentage exemptions. The Department proposes this change to implement the Act more effectively and to advance further the Department's goal to promote self-sufficiency.

In order to address the carryover issue, the proposed rule would change the adjustment calculation that the Department uses to increase or decrease the number of exemptions available to each State for the fiscal year based on usage during the preceding fiscal year. The proposed rule would no longer allow for unlimited carryover from all preceding years. Instead, each State agency's adjustment would be based on the number of exemptions earned in the preceding fiscal year minus the number of exemptions used in the preceding fiscal year. The resulting difference would be used to adjust (by increasing or decreasing) the earned exemption amount. In addition, the adjustment will apply only to the fiscal year in which the adjustment is made.

The three examples below show how the proposed rule's adjustment calculation would work in practice based on no exemption use, varied exemption use, and exemption overuse. These examples assume that a State earns five new exemptions every year over a 4-year period.

Example 1 shows how the proposed adjustment calculation would work for a State that uses zero exemptions, and how it would end the carryover and accumulation of unused exemptions. The State earned five exemptions for the current fiscal year (FY) of 2021 in this example (row A). The State's adjustment for FY 2021 is based on the number of exemptions earned in the previous year (FY 2020) minus the number of exemptions used for the previous year (FY 2020). In this example, we assume the State earned five exemptions in FY 2020 and used no exemptions in FY 2020, so the adjustment for FY 2021 is five (row B). The adjustment of five (row B) is then added to the five earned for FY 2021 (row A) to obtain the State's total of 10 exemptions after adjustment for FY 2021 (row C). In FY 2021, the State uses zero exemptions (row D), so it does not have any overuse liability for that year because row E results in a positive number. In FY 2022, FY 2023, and FY 2024, the calculation is the same and results are the same each year. The number of exemptions available to the State is increased based on the number earned for and used in the preceding fiscal year, but the State does not carryover accumulated exemptions indefinitely. Whereas the State would have 25 total exemptions after adjustment for FY 2024 under the current regulations, the State would have 10 total exemptions after adjustment for FY 2024 under the proposed regulation.

Example 2 shows how the proposed adjustment calculation would work for a State that uses different amounts of exemptions each fiscal year and therefore receives an increase or decrease in the exemptions available to it each subsequent fiscal year. In other words, the number of exemptions available to the State is adjusted for an increased total exemptions one year, then a decreased total exemptions the next. The State earned five exemptions for the current FY of 2021 (row A). The State's adjustment for FY 2021 is based on the number of exemptions earned in the previous year (FY 2020) minus the number of exemptions used for the previous year (FY 2020). We assume the State earned five exemptions in FY 2020 but used zero exemptions in FY 2020, so the State's total after adjustment for FY 2021 is 10 (row C). In FY 2021, the State uses eight exemptions (row D), so it does not have any over-usage liability for that year (row E). That is, though the State only earned 5 exemptions for FY 2021, the adjustment allowed the State to avoid any over usage liability for FY 2021. However, for the purposes of adjustment in FY 2022, the 8 used exemptions are subtracted from the 5 earned exemptions for FY 2021, not from the 10 adjusted exemption amount available in FY 2021. Therefore, the adjustment amount for FY 2022 is negative three. In FY 2022, the State again earns five exemptions but the adjustment is negative three (the result of subtracting row D, FY 2021 from row A, FY 2022). The State then has a total of two exemptions for FY 2022. The State chooses to use two exemptions for FY 2022, therefore it has no overuse in FY 2022. This example shows how the proposed regulation increases or decreases the number of exemptions available to States while also limiting the average number of exemptions in effect to 12 percent over time. As shown in row D, the State can use no more than 10 exemptions over the course of any 2-year period, which is equal to the 10 exemptions earned over every 2-year period.

Example 3 shows how the proposed adjustment calculation would work for a State that overuses exemptions. In this example, we again assume the State earned five exemptions in FY 2020 but used zero exemptions in FY 2020, so the State's total after adjustment for FY 2021 is 10 (row C). In FY 2021, the State uses six exemptions (row D); once again, it does not have any over-usage liability for that year (row E), but the adjustment for FY 2022 will be negative one (the result of subtracting row D, FY 2021 from row A, FY 2022). Put differently, the five exemptions earned for FY 2022 offset the adjustment of negative one. The State then has a total of four exemptions for FY 2022 (row C). However, the State uses six exemptions in FY 2022. Because the State used more exemptions in FY 2022 than its total after adjustment for FY 2022, it has an overuse liability of two for FY 2022. The Department would consider the exemption overuse an overissuance and would hold the State liable for the total dollar value of the exemptions, as estimated by the Department.

Under the proposed rule, the Department would continue to provide States with its estimated number of exemptions earned for each upcoming fiscal year as data becomes available, typically in September. The Department would also continue to provide States with the exemption adjustments as soon as updated caseload data is available and states have provided final data on the number of exemptions used in the preceding fiscal year, typically in January.

The Department also seeks comments from States on how to treat State agencies' existing total number of percentage exemptions, which in some cases have carried over and accumulated over many years, and on when the proposed change should be implemented. Under the proposed rule, these accumulated percentage exemptions would not be available to States once the change is implemented. Additionally, because the adjusted number of exemptions is based on the preceding fiscal year, the change in regulatory text will impact State's ability to use exemptions in the fiscal year preceding the fiscal year that the provision goes into effect. Therefore, the Department seeks comment on how to best handle these issues.

The proposed rule would not change or affect the “caseload adjustments” at 273.24(h)(1), which apply to any State that has a change of over 10 percent in its caseload amount. However, the Department is taking this opportunity to correct the cross-reference that this paragraph makes to 273.24(g)(2) for accuracy. The proposed regulation cross-references 273.24(g)(3), instead of (g)(2). The Department is making this change because it is more accurate and precise to cross-reference to 273.24(g)(3), given that the caseload adjustments apply to the number of exemptions estimated as earned for each State for each fiscal year.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This proposed rule has been determined to be economically significant and was reviewed by the Office of Management and Budget (OMB) in conformance with Executive Order 12866.

As required for rules that have been designated as economically significant by the Office of Management and Budget, a Regulatory Impact Analysis (RIA) was developed for this proposed rule. It follows this rule as an Appendix. The following summarizes the conclusions of the regulatory impact analysis:

The Department has estimated the net reduction in federal spending associated with the proposed transfer rule to be approximately $1.1 billion in fiscal year (FY) 2020 and $7.9 billion over the five years 2020-2024. This is a reduction in federal transfers (SNAP benefit payments); the reduction in transfers represents a 2.5 percent decrease in projected SNAP benefit spending over this time period.

Under current authority, the Department estimates that about 60 percent of ABAWDs live in areas that are not subject to a waiver and thus face the ABAWD time limit. Under the revised waiver criteria the Department estimates that nearly 90 percent of ABAWDs would live in such an area. Of those newly subject to the time limit, the Department estimates that approximately two-thirds (755,000 individuals in FY 2020) would not meet the requirements for failure to engage meaningfully in work or work training.

The Regulatory Flexibility Act (5 U.S.C. 601-612) requires Agencies to analyze the impact of rulemaking on small entities and consider alternatives that would minimize any significant impacts on a substantial number of small entities. Pursuant to that review, it has been certified that this rule would not have a significant impact on a substantial number of small entities.

This proposed rule would not have an impact on small entities because the proposed rule primarily impacts State agencies. As part of the requirements, State agencies would have to update their procedures to incorporate the new criteria for approval associated with requesting waivers of ABAWD time limit. Small entities, such as smaller retailers, would not be subject to any new requirements. However, all retailers would likely see a drop in the amount of SNAP benefits redeemed at stores if these provisions were finalized, but impacts on small retailers are not expected to be disproportionate to impact on large entities. As of FY 2017, approximately 76 percent of authorized SNAP retailers (nearly 200,000 retailers) were small groceries, convenience stores, combination grocery stores, and specialty stores, store types that are likely to fall under the Small Business Administration gross sales threshold to qualify as a small business for Federal Government programs. While these stores make up the majority of authorized retailers, collectively they redeem less than 15 percent of all SNAP benefits. The proposed rule is expected to reduce SNAP benefit payments by about $1.7 billion per year. This would equate to about a $100 loss of revenue per small store on average per month ($1.7 billion × 15%/200,000 stores/12 months). In 2017, the average small store redeemed more than $3,800 in SNAP each month; the potential loss of benefits represents less than 3 percent of their SNAP redemptions and only a small portion of their gross sales. Based on 2017 redemption data, a 2.7 percent reduction in SNAP redemptions represented between 0.01 and 0.5 percent of these stores gross sales.

Executive Order 13771 directs agencies to reduce regulation and control regulatory costs and provides that the cost of planned regulations be prudently managed and controlled through a budgeting process.

This proposed rule is expected to be an Executive Order 13771 deregulatory action. The rule does not include any new costs. FNS is proposing a reduction in burden hours since State agencies are no longer able to group areas together for waiver approval. The reduction would result in an estimated collective savings of $12,092 for State Agencies.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local and tribal governments and the private sector. Under section 202 of the UMRA, the Department generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local or tribal governments, in the aggregate, or the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, Section 205 of the UMRA generally requires the Department to identify and consider a reasonable number of regulatory alternatives and adopt the most cost effective or least burdensome alternative that achieves the objectives of the rule.

This proposed rule does not contain Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local and tribal governments or the private sector of $100 million or more in any one year. Thus, the rule is not subject to the requirements of sections 202 and 205 of the UMRA.

SNAP is listed in the Catalog of Federal Domestic Assistance under No. 10.551. For the reasons set forth in the Final Rule codified in 7 CFR part 3015, subpart V and related Notice (48 FR 29115), this Program is excluded from the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials.

Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have Federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under Section 6(b)(2)(B) of Executive Order 13132.

The Department has determined that this rule does not have Federalism implications. Therefore, under Section 6(b) of the Executive Order, a Federalism summary impact statement is not required.

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or which would otherwise impede its full and timely implementation. This rule is not intended to have retroactive effect unless so specified in the Effective Dates section of the final rule. Prior to any judicial challenge to the provisions of the final rule, all applicable administrative procedures must be exhausted.

FNS has reviewed the proposed rule, in accordance with the Department Regulation 4300-4, “Civil Rights Impact Analysis” to identify and address any major civil rights impacts the proposed rule might have on minorities, women, and persons with disabilities. While we believe that a reduction in the number of ABAWD waivers granted to State agencies will adversely affect potential program participants in all groups who are unable to meet the employment requirements, and have the potential for disparately impacting certain protected groups due to factors affecting rates of employment of members of these groups, we find that the implementation of mitigation strategies and monitoring by the Civil Rights Division of FNS will lessen these impacts.

This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

The USDA's Office of Tribal Relations (OTR) has assessed the impact of this rule on Indian tribes and determined that this rule has tribal implications that require tribal consultation under E.O. 13175. FNS invited Tribal leaders to a consultation held on March 14, 2018. Tribal leaders did not provide any statement or feedback to the Department on the rule. FNS and OTR will determine if a future consultation is needed. If a Tribe requests consultation, FNS will work with the Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions, and modifications identified herein are not expressly mandated by Congress.

The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; 5 CFR 1320) requires the Office of Management and Budget (OMB) approve all collections of information by a Federal agency before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. In accordance with the Paperwork Reduction Act of 1995, this proposed rule will contain information collections that are subject to review and approval by the Office of Management and Budget; therefore, FNS is submitting for public comment the changes in the information collection burden that would result from adoption of the proposals in the rule.

Comments on this proposed rule must be received by April 2, 2019. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.

Title: Supplemental Nutrition Assistance Program Waivers of Section 6(o) of the Food and Nutrition Act.

OMB Number: 0584-0479.

Expiration Date: [July 31, 2021].

Type of Request: Revision of a currently approved collection.

Abstract: Section 6(o) of the Food and Nutrition Act of 2008, (the Act, as amended through Pub. L. 113-xxx), limits the amount of time an able-bodied adult without dependents (ABAWD) can receive Supplemental Nutrition Assistance Program (SNAP) benefits to 3 months in a 36-month period, unless the individual is working and/or participating in a work program half-time or more, or participating in workfare. The Act exempts individuals from the time limit for several reasons, including age, unfitness for work, or having a dependent child. The ABAWD time limit and work requirement currently apply to people ages 18 through 49, unless they are already exempt from the general work requirements, medically certified as physically or mentally unfit for employment, responsible for a child under 18, or pregnant. ABAWDs are also work registrants and must meet the general work requirements. In addition, ABAWDs subject to the time limit must work and/or participate in a work program 80 hours per month or more, or participate in and comply with workfare to receive SNAP for more than 3 months in a 36-month period. Participation in SNAP E&T, which is a type of work program, is one way a person can meet the 80 hour per month ABAWD work requirement, but other work programs are acceptable as well.

The Act also provides State agencies with flexibility to request a waiver of this time limit if unemployment is high or the area does not have a sufficient number of jobs to provide employment. State agencies can request to waive the ABAWD time limit if an area has an unemployment rate of over 10 percent or the State can meet one of the regulatory options to show it does not have a sufficient number of jobs to provide employment. If the time limit is waived, individuals are not required to meet the ABAWD work requirement to receive SNAP for more than 3 months in a 36-month period. This collection of information is necessary for FNS to perform its statutory obligation to review waivers of the SNAP ABAWD time limit.

This is a revision of a currently approved information collection request associated with this rulemaking. In the previous submission, the Food and Nutrition Service (FNS) estimated 35 hours for each waiver request for a total of 1,198 hours. Based on the experience of FNS during calendar year 2018, FNS projects that 36 out of 53 State agencies would submit requests for a waiver of the time limit for ABAWD recipients based on a high unemployment rate or lack of sufficient number of jobs. FNS estimates a response time of 28 hours for each waiver request based on labor market data, which require detailed analysis of labor markets within the State. FNS projects a total of 1,008 hours, which would be a reduction of 190 hours compared to the 1,198 hours estimated provided in the pending approval.

FNS is proposing a reduction in burden hours since State agencies are no longer able to group areas together for waiver approval. The reduction will burden hours would result in an estimated collective savings of $12,092 for State Agencies. This rule does not require any recordkeeping burden. Reporting detail burden details are provided below.

Respondents: State agencies.

Estimated Number of Respondents: 36.

Estimated Number of Responses per Respondent: 1.

Estimated Total Annual Burden on Respondents: 1,008.

The Department is committed to complying with the E-Government Act of 2002, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

Accordingly, FNS proposes to amend 7 CFR part 273 to read as follows:

Title II of the Act provides for the payment of disability insurance benefits to fully insured individuals under the Act. Title II also provides for the payment of child's insurance benefits for individuals who become disabled before attaining age 22, and for the payment of widow's and widower's insurance benefits for disabled widows, widowers, and surviving divorced spouses of insured individuals. 1 In addition, title XVI of the Act provides for Supplemental Security Income (SSI) payments to eligible individuals who are aged, blind, or disabled and have limited income and resources. 2

For adults (including individuals claiming child's insurance benefits based on disability under title II), the Act defines “disability” under both titles II and XVI as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. 3

In many cases, the Act requires us to consider an adult claimant's education when we determine whether or not he or she is disabled. The Act states that an adult shall be determined to be under a disability only if his physical or mental impairment(s) are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. 4

We use a five-step sequential evaluation process to determine whether an adult is disabled based on this statutory definition. 5 If we are unable to find an individual disabled or not disabled at a given step, we proceed to the next step. 6 If we proceed to the fifth and final step, we consider the individual's residual functional capacity (RFC), which is the most the individual can still do despite his or her limitations, 7 together with the individual's vocational factors of age, education, and work experience, 8 to determine if the individual can make an adjustment to perform other work previously not performed. 9 We find individuals to be disabled if they cannot make an adjustment to perform other work. 10 We find individuals not disabled if they can make an adjustment to perform other work. 11 Other work that individuals can adjust to must exist in significant numbers in the national economy. 12 At the final step of our sequential evaluation process, we use the Medical-Vocational Guidelines (grid rules) to administer the Act's definition of disability and direct or guide determinations and decisions about whether individuals are disabled. 13 The education category “inability to communicate in English” is administered through the grid rules.

In this NPRM, we propose to eliminate the education category of “inability to communicate in English” from step five of the disability sequential evaluation process. Instead, we would consider an individual's education using the other current education categories of high school education and above, marginal education, limited education, and illiteracy.

Our current rules explain how we evaluate the vocational factor of education. 14 Education is primarily used to mean formal schooling or other training that contributes to an individual's ability to meet the vocational requirements of work, such as reasoning ability, communication skills, and arithmetic ability. 15 However, a lack of formal schooling does not necessarily mean that an individual is uneducated or does not have reasoning, communication, and arithmetic abilities. Past work experience and the kind of responsibilities an individual had when they were working, daily activities, hobbies, or results of testing may show that the individual has significant intellectual ability that can be used to work. 16

Generally, we will use individuals' highest completed numerical grade level to determine the education category. 17 However, we may adjust an individual's education category if there is evidence that his or her educational abilities are higher or lower than the numerical grade level completed in school. 18 We discuss the categories that examine such evidence below.

We currently use five categories of education: High school education and above, marginal education, limited education, illiteracy, and inability to communicate in English. 19 These categories of education are organized into four levels in the grid rules: High school graduate or more; limited or less; marginal or none; and illiterate or unable to communicate in English.

High school education and above means abilities in reasoning, arithmetic, and language skills acquired through formal schooling at a 12th grade level or above. 20 We generally consider that someone with these educational abilities can do semi-skilled through skilled work. For individuals in this category, we also consider whether there is recently completed education that provides for direct entry into skilled work. If they recently completed education allowing for direct entry into skilled work and are able to perform the work for which they received the education, we do not consider them to be disabled. 21

Limited education means ability in reasoning, arithmetic, and language skills, but not enough to allow a person with these educational qualifications to do most of the more complex job duties needed in semi-skilled or skilled jobs. 22 We generally consider an individual with a 7th grade through the 11th grade level of formal education to have a limited education.

Marginal education means ability in reasoning, arithmetic, and language skills needed to do simple, unskilled jobs. 23 We generally consider an individual with formal schooling at a 6th grade level or less to have a marginal education.

Illiteracy means the inability to read or write. 24 We consider an individual illiterate if he or she cannot read or write a simple message, such as instructions or inventory lists, even though the individual can sign his or her name. Generally, we expect an illiterate individual to have little or no formal schooling.

Our rules explain that we consider inability to communicate in English an education category because the ability to speak, read, and understand English is generally learned or increased in school. 25 Our current rules further explain that because English is the dominant language of this country, it may be difficult for someone who does not speak and understand English to do a job, regardless of the amount of education he or she may have in another language. 26 Therefore, under our current rules, we consider an individual's ability to communicate in English when we evaluate what work, if any, he or she can do. We do not consider fluency in other languages. 27

Based on the organization of education categories in the current grid rules, an individual who is unable to communicate in English may be considered under the grid rules specifying education level of “illiterate or unable to communicate in English” or under the broader category of “limited or less” or “marginal or none,” depending on the individual's age and RFC. 28

Under the grid rules, age 45 is the earliest point at which English language proficiency can make a difference in disability determination. 29 In other words, the “inability to communicate in English” education category makes no difference as to the outcome of disability determination for individuals under 45 years of age. The grid rules are premised on the idea that for individuals under age 45, the inability to communicate in English does not pose a significant vocational limitation because being younger gives them an advantage in adjusting to other work. 30 Our current rules are also based on the premise that English language proficiency has the least significance for unskilled work because most unskilled jobs involve working with things rather than with data or people. 31

In 1978, we promulgated the five-step sequential evaluation process and adopted the grid rules, under which we consider the interaction of the individual's residual functional capacity, age, education, and work experience to determine whether or not an individual is disabled under our rules. We propose to revise the rules for how we consider an individual's education in relation to the inability to communicate in English for several reasons. Central to our proposed revisions is that our current rules do not take into account that claimants who cannot read, write, or speak English often have a formal education that may provide them with a vocational advantage. If a claimant meets the current criterion of “inability to communicate in English,” we generally disregard the amount of formal schooling the individual may have and evaluate the claim in the same manner as we do for a claim filed by an illiterate individual. Moreover, since we adopted these rules, the U.S. workforce has become more linguistically diverse and work opportunities have expanded for individuals who lack English proficiency. Further, our current rules treat English language proficiency as a relevant vocational factor even when claimants live in countries outside the U.S. or in U.S. territories where English is not a dominant language, leading to disparate results based on the location of the claimants.

Claimants who report an inability to read, write, or speak English often report having a high school education or more. In fiscal year 2016, approximately 49% of title II claimants and 39% of title XVI claimants who reported an inability to read, write, or speak English, 32 also reported having completed a high school education or more. 33 Further, the claimants who reported an inability to read, write, or speak English and who had at least a high school education had past work experience at higher skill levels, when compared to the claimants with less education. 34 Our claims data indicate that higher levels of education may provide a vocational advantage, even for individuals who are unable to communicate in English. 35

Since we adopted our current rules in 1978, linguistic diversity in the national economy has increased, which has changed the way the inability to communicate in English affects an individual's ability to work. For purposes of the data analysis in this NPRM, we refer to individuals who self-identified in the U.S. Census Bureau's (Census) American Community Survey as speaking a language other than English at home and speaking English “well,” “not well,” or “not at all” collectively as LEP. 36 We selected this definition consistent with how the Census defines LEP. 37

In absolute numbers, the working age population (ages 25-64) with LEP increased from approximately 5.4 to 17.8 million between 1980 and 2016, while more than doubling, from 5.1% to 10.5%, as a percentage of the population. 38 Within this group, the number of individuals who spoke no English more than quadrupled from approximately 682,000 to 2.8 million (representing growth from 0.6% to 1.7%, as a percentage of the working age population). 39

Between 1980 and 2016, the number of non-English speaking workers in the 25-64 age range grew from approximately 373,000 to 1.7 million. 40 During the same period, the labor force participation rate for working age individuals who speak no English increased from approximately 54.7% to 61.5%. 41 Notably, considering the working age population with “less than high school diploma,” the 2016 labor force participation rate for those speaking no English (60.5%) surpassed the labor force participation rate of those speaking “only English” (48.9%). 42 In 1980, the reverse was true; working age individuals with less than a high school diploma speaking only English had a 60.7% labor force participation rate that exceeded the 54.5% rate for those speaking no English. 43

The increase in labor force participation by individuals who lack English proficiency may be in part due to the increase in low-skilled work in the national economy. In 2014, our Office of Research, Evaluation, and Statistics (ORES) prepared an Evidence Synthesis consolidating information from research we commissioned and other available research for the purposes of modernizing our vocational regulations. 44 ORES' literature review on the vocational factor of education indicates that with the introduction of new technology replacing moderately skilled workers, there are fewer moderately skilled jobs and higher numbers of low and high skilled jobs. 45 Indeed, our claims data show that many claimants who may fall within the “inability to communicate in English” category have a history of working in occupations requiring lower level skills such as laborer, machine operator, janitor, cook, maintenance, and housekeeping. 46 Consistent with our claims data and ORES' literature review, a Brookings Institution's (Brookings) study of LEP workers in the U.S. found that a lack of English proficiency does not generally prevent low-skilled workers from obtaining employment. 47 Brookings' analysis shows that over 1 million individuals with LEP, including those who speak English “not at all,” are represented in each of the following occupations: Building and grounds cleaning and maintenance; production; construction and extraction; food preparation and serving; transportation and material moving; sales and related occupations; and office and administrative support. 48 In the first four of the listed occupations, the workers with LEP make up more than 10% of total workers. 49 In sum, both our claims data and external data indicate that work opportunities have expanded and labor force participation has increased for individuals who may fall within the “inability to communicate in English” education category. 50

Since we adopted our current education categories in 1978, we have established a network of bilateral Social Security agreements that coordinate the U.S. Social Security program with the comparable programs of other countries. 51 These international Social Security agreements, often called “totalization agreements,” have two main purposes. First, they eliminate dual Social Security taxation, the situation that occurs when a worker from one country works in another country and is required to pay Social Security taxes to both countries on the same earnings. Second, the agreements help fill gaps in benefit protection for workers who have divided their careers between the U.S. and another country.

The international reach of our title II disability program has steadily expanded over the years. In 1978, we had a totalization agreement with only one country. 52 We now have totalization agreements with 28 countries. 53 English is the predominant language in only four of those countries (Canada, United Kingdom, Ireland, and Australia). When an individual files a disability claim based in part on eligibility under a totalization agreement, we use the same five-step sequential evaluation process to determine whether he or she qualifies for disability benefits. Under our current rules, even if individuals applying for disability live in a country with a totalization agreement where English is not a dominant language, we must still classify them in the “inability to communicate in English” education category if they cannot speak, read, or write English. In light of the significant expansion of the totalization program since 1978, we believe our proposal to consider individuals' education level would strengthen our international disability program abroad.

Eligibility for the title II disability program benefits extends to U.S. nationals in the U.S. territories, which include Puerto Rico, the U.S. Virgin Islands, Guam, the Northern Marianas Islands, and American Samoa. As we do for individuals in countries with totalization agreements, we currently consider the inability to communicate in English to be a vocationally relevant factor when adjudicating disability claims in all U.S. territories, regardless of whether English is the dominant language. 54 In 2015, OIG examined the trends associated with the application of existing grid rules involving the inability to communicate in English in Puerto Rico. 55 OIG's audit of claims in Puerto Rico indicated that the grid rules involving the inability to communicate in English merit a closer examination.

Following the audit, OIG recommended that we evaluate the appropriateness of the grid rules related to the inability to communicate in English when determining eligibility for disability for individuals similar to those evaluated in the audit. In response to the audit, we analyzed the fiscal year 2016 national data for claims adjudicated under the two main grid rules dealing with the inability to communicate in English ( i.e., grid rules 201.17 and 202.09). In FY 2016, our analysis revealed that claims from Puerto Rico (31.2%), California (19.2%), New York (11.22%), and Florida (5.8%) accounted for 67.42% (1,677) of all initial title II allowances (2,487) made under these two grid rules. 56 While claims allowed under the two grid rules in Puerto Rico accounted for nearly a third of all initial title II allowances under the two grid rules nationally, claims from Puerto Rico represented 1% of all of the 472,468 of initial title II disability allowances. 57

Our current policy on the inability to communicate in English explains the seemingly disproportionate number of allowances made under grid rules 201.17 and 202.09 in Puerto Rico. According to U.S. census data, 94.3% of the residents in Puerto Rico speak Spanish. 58 Consistent with this data, in fiscal year 2016, 11,564 (86.8%) claimants in Puerto Rico reported an inability to read, write, or speak English. 59 Among the claimants who reported an inability to read, write, or speak English, 9,167 (79.3%) had an education at high school or more. 60

A subsequent analysis of our data from the fiscal year 2017 similarly showed that 80.4% of the claimants who reported an inability to read, write, or speak English and were approved for disability under the grid rules 201.17 and 202.09 had high school education or more. 61 Their work histories varied and included many professions requiring high levels of education and skills. 62 These data indicate that an ability to communicate in English is not the most appropriate proxy for determining educational categorization.

On September 14, 2015, we published an Advance Notice of Proposed Rule Making (ANPRM) in the Federal Register entitled “Vocational Factors of Age, Education, and Work Experience in the Adult Disability Determination Process.”  63 In this ANPRM, we documented our longitudinal vocational factors research efforts from 1998 to 2014, and we solicited public comments and supporting data about how each of these vocational factors affects an individual's ability to adjust to other work. 64 We said that we would consider all relevant public comments we received, but that we would not respond directly to them. 65

Although we did not specifically ask for comments on the “inability to communicate in English” education category, 10 of the 137 public comments submitted in response to the ANPRM, including those submitted after we extended the comment period, addressed that issue. 66 Commenters expressed diverging opinions; these commenters did not present supportive data. For example, one commenter said that in today's economy, literacy in English has much less effect on an individual's ability to work because, in the opinion of the commenter, many non-English speakers are currently working throughout the U.S. economy. Another commenter noted that the inability to communicate in English would further erode an individual's ability to work and that it should be given more weight.

For the reasons stated above, we propose to revise the rules we use to evaluate education as a vocational factor for individuals who communicate in a language other than English when we evaluate disability claims for adults under titles II and XVI of the Act. Specifically, we propose to change how we evaluate education for individuals who communicate in a language other than English by removing the education category “inability to communicate in English.”

Under the proposed regulations, we would not consider an individual's educational attainment to be at a lower education category than his or her highest numeric grade level solely because the education occurred in a language other than English, the individual participated in an English language learner program, such as an English as a second language class, or the individual is deemed to have LEP under current Federal standards. 67 These proposed rules retain our longstanding and well-supported recognition that more formal education, work experience, and training improve an individual's ability to adjust to other work.

Instead, we would apply our current rules for determining an individual's education category for all claimants regardless of which language they use to communicate. We will use an individual's numerical grade level to determine the education category of the individual, and we may adjust an individual's education category if there is evidence that his or her attained educational abilities are higher or lower than the highest numerical grade level completed in school.

We propose to make these and other minor conforming revisions in 20 CFR 404.1564 and 416.964. We also propose to make other revisions to these sections to remove references to the English language.

We also propose to revise the grid rules. First, we propose to revise all grid rules referencing an inability to communicate in English. Specifically, we would revise “Illiterate or unable to communicate in English” to “Illiterate” (201.17, 201.23, 202.09, 202.16) and “Limited or less—at least literate and able to communicate in English” to “Limited or Marginal, but not Illiterate” (201.18, 201.24, 202.10, 202.17). For clarity and ease of use, we propose to revise “Marginal or none” to “Marginal or Illiterate” (203.01). Second, we propose to make other conforming changes throughout the grid rules consistent with the revisions discussed above.

If we adopt these proposed rules as final rules, we would begin to apply them to new applications, pending claims, and continuing disability reviews (CDR), as appropriate, as of the effective date of the final rules. 68

If we adopt these proposed rules as final rules, we would rescind Acquiescence Ruling (AR) 86-3(5), which applies to claims in the Fifth Circuit, because AR 86-3(5) would be inconsistent with the final rules. 69 We may also rescind or replace other current Social Security Rulings to conform to the final rules. Where necessary, we would also issue updated subregulatory guidance.

We will consider all comments we receive on or before the close of business on the comment closing date indicated above. The comments will be available for examination in the rulemaking docket for these rules at the above address. We will file comments received after the comment closing date in the docket and will consider those comments to the extent practicable. However, we will not respond specifically to untimely comments. We may publish a final rule at any time after close of the comment period.

Executive Order 12866, as supplemented by Executive Order 13563, requires each agency to write all rules in plain language. In addition to your substantive comments on this notice of proposed rulemaking, we invite your comments on how to make the rule easier to understand.

For example:

• Would more, but shorter, sections be better?

• Are the requirements in the rule clearly stated?

• Have we organized the material to suit your needs?

• Could we improve clarity by adding tables, lists, or diagrams?

• What else could we do to make the rule easier to understand?

• Does the rule contain technical language or jargon that is not clear?

• Would a different format make the rule easier to understand, e.g. , grouping and order of sections, use of headings, paragraphing?

We consulted with the Office of Management and Budget (OMB) and determined that this notice of proposed rulemaking meets the criteria for a significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563. Therefore, OMB reviewed it.

We also determined that this final rule meets the plain language requirement of Executive Order 12866.

We analyzed this proposed rule in accordance with the principles and criteria established by Executive Order 13132, and determined that the proposed rule will not have sufficient Federalism implications to warrant the preparation of a Federalism assessment. We also determined that this proposed rule will not preempt any State law or State regulation or affect the States' abilities to discharge traditional State governmental functions.

Based upon the criteria established in Executive Order 13771, we have identified the anticipated program cost and administrative costs as the following.

Anticipated Costs to Our Programs:

Anticipated Administrative Costs to the Social Security Administration:

We certify that this proposed rule will not have a significant economic impact on a substantial number of small entities because it affects individuals only. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.

These proposed rules contain public reporting requirements in the regulation sections listed below, or will require changes in the forms listed below, which we did not previously clear through an existing Information Collection Request.

SSA submitted an Information Collection Request for clearance to OMB. We are soliciting comments on the burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to minimize the burden on respondents, including the use of automated techniques or other forms of information technology. If you would like to submit comments, please send them to the following locations:

For the reasons set out in the preamble, we propose to amend 20 CFR part 404 subpart P and part 416 subpart I as set forth below:

The revision to read as follows:

The revisions to read as follows:

The revision to read as follows:

The subject of the public hearing is the notice of proposed rulemaking (REG-104390-18) that was published in the Federal Register on Wednesday, October 10, 2018 (83 FR 51072).

The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing that submitted written comments by November 26, 2018 must submit an outline of the topics to be addressed and the amount of time to be devoted to each topic by Monday, February 11, 2019.

A period of 10 minutes is allotted to each person for presenting oral comments. After the deadline for receiving outlines has passed, the IRS will prepare an agenda containing the schedule of speakers. Copies of the agenda will be made available, free of charge, at the hearing or by contacting the Publications and Regulations Branch at (202) 317-6901(not a toll-free number).

Because of access restrictions, the IRS will not admit visitors beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this document.

A notice of proposed rulemaking and notice of public hearing that appeared in the Federal Register on Monday, October 29, 2018 (83 FR 54279) announced that a public hearing was scheduled for January 10, 2019 at 10 a.m. in the IRS Auditorium, Internal Revenue Service Building, 1111 Constitution Avenue NW, Washington, DC. The subject of the public hearing contains proposed regulations that provide guidance under new section 1400Z-2 of the Internal Revenue Code (Code) relating to gains that may be deferred as a result of a taxpayer's investment in a qualified opportunity fund (QOF).

The public comment period for these regulations expired on December 28, 2018. The notice of proposed rulemaking and notice of hearing instructed those interested in testifying at the public hearing to submit a request to speak and an outline of the topics to be discussed. The outlines of topics to be discussed were due by December 28, 2018. Because of the government shutdown the public hearing scheduled for January 10, 2019 at 10:00 a.m. was not held and is rescheduled for February 14, 2019.

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

On January 17, 2017, the Connecticut Department of Energy and Environmental Protection (DEEP) submitted a SIP revision regarding the 2008 ozone NAAQS for the Greater Connecticut moderate nonattainment area. On August 8, 2017, Connecticut DEEP submitted a SIP revision for the State's portion of the New York-Northern New Jersey-Long Island (NY-NJ-CT) moderate nonattainment area for the 2008 ozone NAAQS. On October 1, 2018, EPA published a final rulemaking (See 83 FR 49297) approving several portions of the January 17, 2017 and August 8, 2017 SIP submittals; the final rule approved reasonable further progress (RFP) demonstrations, motor vehicle emissions budgets (MVEBs), reasonably available control measures (RACM) analyses, and contingency measures for the Greater Connecticut and the Connecticut portion of the NY-NJ-CT moderate ozone nonattainment areas. In this proposed rulemaking action, we are proposing to approve submittals for the motor vehicle emissions inspection and maintenance (I/M) program certifications for the 2008 ozone NAAQS for both the Greater Connecticut and the Connecticut portion of the NY-NJ-CT moderate nonattainment areas. Although Connecticut's January 17, 2017 and August 8, 2017 submittals also included attainment demonstrations for the 2008 ozone standard, we are not addressing those submittals in this proposed rulemaking. Additional background information can be found in our October 1, 2018 final rule (83 FR 49297), the final rule's associated proposed rulemaking on August 3, 2018 (83 FR 38104), and at https://www.regulations.gov within the Docket ID No. EPA-R01-OAR-2016-0168.

Under the 2008 ozone NAAQS requirements, Connecticut is required to implement a basic I/M program for light-duty motor vehicles. However, due to more stringent nonattainment designations under previous NAAQS and Connecticut's inclusion as part of the Ozone Transport Region (OTR), Connecticut implements an enhanced I/M program. The enhanced I/M program tests gasoline-fueled and diesel-fueled motor vehicles through 10,000 pounds gross vehicle weight rating (GVWR), requires onboard diagnostic testing on Model Year (MY) 1996 and newer vehicles, and requires more comprehensive tailpipe testing on MY 1995 and older vehicles. The enhanced I/M program also implements an Emissions Control Device Inspection through visual inspection for the presence of catalytic converter(s) and other major emissions control equipment.

Connecticut's I/M program was first approved into the SIP on May 21, 1984 (49 FR 10542) and has been modified several times to accommodate the CAA requirements and technological advancements such as on-board diagnostic testing. As part of the OTR, Connecticut is required to implement an enhanced I/M program in specific areas per CAA 184(b)(1). Connecticut exceeds federal requirements by requiring the enhanced I/M program statewide. EPA approved revisions to Connecticut's I/M program into the SIP in 2008 and 2015 (see 73 FR 74019 and 80 FR 13768 respectively). We find that Connecticut's I/M program certifications further strengthen the SIP and meet federal requirements.

We are proposing to approve the motor vehicle emissions I/M program certifications included in the attainment demonstrations submitted by the State of Connecticut for the 2008 ozone NAAQS for the Greater Connecticut and the Connecticut portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT moderate nonattainment areas.

EPA is soliciting public comments on the issues discussed in this notice or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to this proposed rulemaking by following the instructions listed in the ADDRESSES section of this Federal Register .

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• This action is not expected to be an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866;

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

EPA is proposing to approve changes to the Jefferson County portion of the Kentucky SIP that were provided to EPA through two letters dated August 25, 2017, and March 15, 2018. 1 EPA is proposing to approve portions of these SIP revisions that make changes to the District's Regulation 2.05— Prevention of Significant Deterioration of Air Quality, which applies to the construction and modification of any major stationary source in areas designated as attainment or unclassifiable as required by part C of title I of the CAA. These revisions are intended to make the Jefferson County PSD permitting regulation consistent with the federal requirements, as promulgated by EPA. 2 The August 25, 2017, and March 15, 2018, SIP revisions update the incorporation by reference (IBR) date found at Regulation 2.05 from July 1, 2010, to July 15, 2017, for the federal PSD permitting regulations at 40 CFR 52.21. By updating the IBR date for 40 CFR 52.21, Jefferson County is making the following changes to their PSD regulations: (1) Adopting “increments” for the PM 2.5 National Ambient Air Quality Standard (NAAQS); (2) adopting updated greenhouse gases (GHGs) provisions; (3) incorporating grandfathering provisions for the 2012 primary annual PM 2.5 NAAQS and the 2015 8-hour ozone NAAQS, as well as adopting the repeal of grandfathering provisions for the old PM 2.5 NAAQS; and (4) incorporating a correction to the definition of “regulated NSR pollutant” for PSD. These changes are discussed in more detail in the following sections. 3

On May 16, 2008 (73 FR 28321), EPA published the “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM 2.5 )” Final Rule (hereinafter referred to as the NSR PM 2.5 Rule). The 2008 NSR PM 2.5 Rule revised the NSR program requirements to establish the framework for implementing preconstruction permit review for the PM 2.5 NAAQS in both attainment and nonattainment areas. As indicated in the 2008 NSR PM 2.5 Rule, major stationary sources seeking permits must begin directly satisfying the PM 2.5 requirements, as of the effective date of the rule, rather than relying on PM 10 as a surrogate, with two exceptions. The first exception was a “grandfathering” provision in the federal PSD program at 40 CFR 52.21(i)(1)(xi). This grandfathering provision applied to sources that had applied for, but had not yet received, a final and effective PSD permit before the July 15, 2008, effective date of the May 2008 final rule. The second exception was that states with SIP-approved PSD programs could continue to implement a policy in which PM 10 served as a surrogate for PM 2.5 for up to three years (until May 2011) or until the individual revised state PSD programs for PM 2.5 were approved by EPA, whichever came first. 4

On May 18, 2011 (76 FR 28646), EPA took final action to repeal the PM 2.5 grandfathering provision contained in the federal PSD program at 40 CFR 52.21(i)(1)(xi). This final action also ended the use of the 1997 PM 10 Surrogate Policy for PSD permits under the federal PSD program at 40 CFR 52.21. In effect, any PSD permit applicant previously covered by the grandfathering provision (for sources that completed and submitted a permit application before July 15, 2008)  5 that did not have a final and effective PSD permit before the effective date of the repeal will not be able to rely on the 1997 PM 10 Surrogate Policy to satisfy the PSD requirements for PM 2.5 .

The NSR PM 2.5 Rule also established the following NSR requirements to implement the PM 2.5 NAAQS: (1) Required NSR permits to address directly emitted PM 2.5 and precursor pollutants; (2) established significant emission rates for direct PM 2.5 and precursor pollutants (including sulfur dioxide and oxides of nitrogen); (3) established PM 2.5 emission offsets; and (4) required states to account for gases that condense to form particles (“condensables”) in PM 2.5 and PM 10 emission limits in PSD or NNSR permits. In addition, the NSR PM 2.5 Rule gives states the option of allowing interpollutant trading for the purpose of precursor offsets under the PM 2.5 NNSR program. 6

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

States are required to submit a progress report in the form of a SIP revision that evaluates progress towards the reasonable progress goals (RPGs) for each mandatory Class I federal area  1 (Class I area) within the state and in each Class I area outside the state which may be affected by emissions from within the state. See 40 CFR 51.308(g). In addition, the provisions of 40 CFR 51.308(h) require states to submit, at the same time as the 40 CFR 51.308(g) progress report, a determination of adequacy of the state's existing regional haze SIP. The progress report SIP for the first planning period is due five years after submittal of the initial regional haze SIP. On December 30, 2011, the Massachusetts Department of Environmental Protection (MassDEP) submitted the Commonwealth's first regional haze SIP in accordance with 40 CFR 51.308. 2 On February 9, 2018, MassDEP submitted, as a revision to its SIP, its progress report which detailed the progress made in the first planning period toward the implementation of the Long Term Strategy (LTS) outlined in the 2011 regional haze submittal, the visibility improvement measured at Class I areas affected by emissions from Massachusetts, and a determination of the adequacy of the Commonwealth's existing regional haze SIP. The EPA is proposing to approve Massachusetts' February 9, 2018 SIP submittal.

MassDEP's report on progress made in the first implementation period toward reasonable progress goals for all Class I areas affected by emission from sources in Massachusetts (also known as a regional haze five-year progress report) was submitted to the EPA as a SIP revision. This progress report SIP submittal also included a determination that the Commonwealth's existing regional haze SIP requires no substantive revision to achieve the established regional haze visibility improvement and emission reduction goals for 2018. Massachusetts is a member of the Mid-Atlantic/Northeast Visibility Union (MANE-VU). 3 The MANE-VU area contains seven Class I areas in four States: Moosehorn Wilderness Area, Acadia National Park, and Roosevelt Campobello International Park in Maine; Presidential Range/Dry River Wilderness Area and Great Gulf Wilderness Area in New Hampshire; Brigantine Wilderness Area in New Jersey; and Lye Brook Wilderness Area in Vermont. There are no Class I areas in Massachusetts. Through source apportionment modeling, MANE-VU assisted states in determining their contribution to the visibility impairment of each Class I area in the MANE-VU region and nearby Class I areas outside of MANE-VU. Massachusetts emissions were found to contribute to visibility impairment at each of the MANE-VU Class I areas, with the exception of Brigantine Wilderness Area in New Jersey. See 77 FR 30932 (May 24, 2012).

Through the consultation process, Massachusetts agreed to reduce emissions by at least the amount obtained by the measures in the coordinated course of action agreed to by MANE-VU to assure reasonable progress toward preventing any future, and remedying and existing, impairment of visibility in the mandatory Class I areas within the MANE-VU region. These strategies are commonly referred to as the MANE-VU “ask.” The MANE-VU “ask” includes: A timely implementation of best available retrofit technology (BART) requirements, 90 percent or more reduction in sulfur dioxide (SO 2 ) at 167 electrical generating units (EGUs) “stacks” identified by MANE-VU (or comparable alternative measures), lower sulfur fuel oil (with limits specified for each state) and continued evaluation of other control measures. 4 In summary, Massachusetts is on track to fulfill the MANE-VU “ask” by adopting and implementing an alternative to the BART, 5 reducing SO 2 emissions at identified stacks, and implementing the low sulfur in fuel strategy.

This section includes the EPA's analysis of MassDEP's progress report SIP submittal and an explanation of the basis of our proposed approval.

The 2011 Massachusetts regional haze SIP included the following key measures: BART determinations for two municipal waste combustors, an EGU alternative to BART strategy, SO 2 emission reductions from ten targeted EGU stacks, and an adopted regulation which reduces the sulfur content of #2 distillate oil and #4/#6 residual oil. EPA's analysis of the Massachusetts regional haze SIP for the first planning period can be found at 77 FR 30932 (May 24, 2012) and will not be restated here.

Table 3.1 of the Massachusetts progress report details the status of units subject to BART and the alternative to BART. All units have either been retired or have adopted permit revisions to implement BART or Alternative to BART. Table 3.2 of the Massachusetts progress report shows that the actual 2017 SO 2 and NO X reductions are 99% and 97%, respectively, of the 2018 alternative to BART reduction target. Similarly, Table 3.3 shows a 99% reduction in SO 2 from the targeted EGUs, far surpassing the expected 90% reduction.

Massachusetts also adopted the MANE-VU low sulfur strategy. EPA approved the Massachusetts low sulfur in fuel regulation concurrent with EPA's approval of the Massachusetts regional haze SIP. See 78 FR 57487 (September 19, 2013).

EPA is proposing to find that MassDEP has adequately addressed the applicable provisions under 40 CFR 51.308(g) with the demonstrated implementation of measures within Massachusetts, including implementing the alternative to BART.

During the development of the regional haze SIP for the first planning period, MANE-VU and MassDEP determined that SO 2 was the greatest contributor to anthropogenic visibility impairment at nearby Class I areas. Therefore, the bulk of the visibility improvement achieved in the first planning period was expected to be from reductions in SO 2 emissions. Table 4.1 of the 2018 progress report presents data from statewide Massachusetts emission inventories developed for the years 2002, 2011, 2014, and projected inventories for 2018 for SO 2 , nitrogen oxides (NO X ), and fine particulates with diameters that are generally less than 2.5 micrometers (PM 2.5 ). From 2002 through 2014, the Commonwealth's overall SO 2 emission were reduced from 134,824 tons to 19,882 tons of SO 2 , below the 2018 projection of 60,061 tons SO 2 . For NO X , from 2002 to 2014, the Commonwealth achieved an overall 54% reduction in NO X from 266,098 tons to 120,054 tons. The 2018 NO X projection for 2018 was 126,510 tons. Finally, from 2002 to 2014, PM 2.5 emissions were reduced from 53,000 tons to 39,000 tons, once again surpassing the 40,956 tons PM 2.5 projection for 2018.

EPA finds that Massachusetts has adequately addressed the applicable provisions under 40 CFR 51.308(g). MassDEP compared the most recently updated emissions inventory data available at the time of development of the progress report with the baseline emissions inventory data from its regional haze SIP. The progress report appropriately details the 2014 SO 2 , NO X , and PM 2.5 reductions achieved, by sector, thus far in the regional haze planning period.

The provisions under 40 CFR 51.308(g) also require that states with Class I areas within their borders to provide information on current visibility conditions and the difference between current visibility conditions and baseline visibility conditions expressed in terms of five-year averages of these annual values. Massachusetts has no Class I areas, but the Class I areas affected by emissions from Massachusetts have visibility conditions better than baseline conditions and conditions predicted for 2018. The Interagency Visual Environmental monitoring program (IMPROVE) provides data on the air pollutants that constitute regional haze. The MassDEP progress report includes data from the IMPROVE sites at Class I areas affected by emissions from Massachusetts. Tables 1 and 2 below show the progress from the baseline 2000-2004 five-year average visibility through the most recent 2012-2016 five-year period for the 20% haziest days and 20% cleanest days.

EPA notes the substantial improvement in visibility at Class I Areas impacted by Massachusetts emissions. These Class I areas have met the RPGs for the first regional haze planning period.

EPA proposes to find Massachusetts provided the required information regarding visibility conditions to meet the applicable requirements under 40 CFR 51.308(g), specifically providing baseline visibility conditions (2000-2004) and current conditions based on IMPROVE monitoring data (2012-2016), and an assessment of the change in visibility impairment at nearby Class I areas.

In its progress report SIP, MassDEP presents data from statewide emissions inventories developed for the years 2002, 2011, and 2014 with projected inventories for 2018 for SO 2 , NO X , and PM 2.5 . Massachusetts' emission categories include the following source categories: EGU point, non-EGU point, point, area, on-road mobile, and non-road mobile. The 2014 emissions for all pollutants of concern and all source sectors were below the projections for 2018 contained in the regional haze SIP. Reductions achieved by 2014 are 54% for NO X , 85% for SO 2 , and 25% for PM 2.5 .

EPA is proposing to find that MassDEP adequately addressed the provisions of 40 CFR 51.308(g). The progress report compared the most recent updated emission inventory data available at the time of the development of the progress report with baseline emissions used in the modeling for the regional haze SIP.

In its progress report SIP, Massachusetts did not find any significant changes in emissions of SO 2 , NO X , and PM 2.5 which might impede or limit progress during the first planning period. As noted earlier, haze at Class I areas affected by Massachusetts emissions has improved to levels to meet or exceed the RPG. EPA therefore proposes to approve MassDEP's 2018 SIP submission.

In its progress report SIP, Massachusetts concludes the elements and strategies relied on in its original regional haze SIP are sufficient to enable Massachusetts and neighboring states to meet all established RPGs. As shown in Table 1 above, visibility on the most impaired days from 2000 through 2016 has improved at all Class I areas affected by emissions from Massachusetts (and all RPGs have already been met.)

EPA proposes to agree with MassDEP's conclusion that Massachusetts has adequately addressed the provisions for the first planning period progress report. EPA views this requirement as an assessment that should evaluate emissions and visibility trends and other readily available information. In its progress report, MassDEP described the improving visibility trends using data from the IMPROVE network and the downward emission trends in key pollutants in the Commonwealth. MassDEP determined its regional haze SIP is sufficient to meet the RPGs for the Class I areas impacted by the Commonwealth's emissions.

Massachusetts does not have any Class I areas and is not required to monitor for visibility-impairing pollutants. The Massachusetts visibility monitoring strategy relies upon Class I area participation in the IMPROVE network. EPA proposes to find that Massachusetts has adequately addressed the requirements for a monitoring strategy for regional haze and proposes to determine no further modifications to the monitoring program are necessary.

In its progress report, MassDEP submitted a negative declaration to EPA regarding the need for additional actions or emission reductions in Massachusetts beyond those already in place and those to be implemented by 2018 according to the Massachusetts regional haze plan.

In the 2018 SIP submittal, MassDEP determined the existing regional haze SIP requires no further substantive revision at this time to achieve the RPGs for the Class I areas affected by the Commonwealth's sources. The basis for the Commonwealth's negative declaration is the finding that visibility has improved at all Class I areas in the MANE-VU region. In addition, SO 2 and PM 2.5 emissions for the latest emission inventory for Massachusetts have decreased to levels below projections for 2018.

EPA proposes to conclude that MassDEP has adequately addressed the provisions under 40 CFR 51.308(h) because visibility and emission trends indicate that Class I areas impacted by Massachusetts sources are meeting or exceeding the RPGs for 2018.

EPA is proposing to approve Massachusetts' regional haze progress report as meeting the requirements of 40 CFR 51.308(g) and (h). EPA is soliciting public comments on the issues discussed in this notice or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to this proposed rulemaking by following the instructions listed in the ADDRESSES section of this Federal Register .

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• This action is not expected to be an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866;

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

This rulemaking addresses a December 6, 2017, submission from the Rhode Island Department of Environmental Management (RI DEM) regarding the infrastructure SIP requirements of the CAA for the 2012 fine particle (PM 2.5   1 ) National Ambient Air Quality Standard (NAAQS). The primary, health-based annual standard is set at 12.0 micrograms per cubic meter (µg/m 3 ) and the 24-hour standard is set at 35 µg/m 3 . See 78 FR 3086. Under sections 110(a)(1) and (2) of the CAA, states are required to provide infrastructure SIP submissions to ensure that state SIPs provide for implementation, maintenance, and enforcement of the NAAQS, including the 2012 PM 2.5 NAAQS.

EPA is acting on a SIP submission from RI DEP that addresses the infrastructure requirements of the Act for the 2012 PM 2.5 NAAQS. The requirement for states to make a SIP submission of this type arises out of CAA sections 110(a)(1) and 110(a)(2). Pursuant to these sections, each state must submit a SIP that provides for the implementation, maintenance, and enforcement of each primary or secondary NAAQS. States must make such SIP submission “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a new or revised NAAQS.” This requirement is triggered by the promulgation of a new or revised NAAQS and is not conditioned upon EPA's taking any other action. Section 110(a)(2) includes the specific elements that “each such plan” must address.

EPA commonly refers to such SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA.

This rulemaking will not cover three substantive areas that are not integral to acting on a state's infrastructure SIP submission: (i) Existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction at sources (“SSM” emissions) that may be contrary to the CAA and EPA's policies addressing such excess emissions; (ii) existing provisions related to “director's variance” or “director's discretion” that purport to permit revisions to SIP-approved emissions limits with limited public process or without requiring further approval by EPA, that may be contrary to the CAA (“director's discretion”); and, (iii) existing provisions for Prevention of Significant Deterioration (PSD) programs that may be inconsistent with current requirements of EPA's “Final New Source Review (NSR) Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Instead, EPA has the authority to address each one of these substantive areas separately. A detailed history, interpretation, and rationale for EPA's approach to infrastructure SIP requirements can be found in EPA's May 13, 2014, proposed rulemaking entitled, “Infrastructure SIP Requirements for the 2008 Lead NAAQS” in the section, “What is the scope of this rulemaking?” See 79 FR 27241 at 27242-45.

EPA highlighted the statutory requirement to submit infrastructure SIPs within 3 years of promulgation of a new NAAQS in an October 2, 2007, memorandum entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and PM 2.5 National Ambient Air Quality Standards” (2007 memorandum). EPA has issued additional guidance documents and memoranda, including a September 25, 2009, memorandum entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM 2.5 ) National Ambient Air Quality Standards (NAAQS)” (2009 memorandum), and a September 13, 2013, memorandum entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)” (2013 memorandum). 2

With respect to the “Good Neighbor” or interstate transport requirements for infrastructure SIPs, the most recent relevant EPA guidance is a memorandum published on March 17, 2016, entitled “Information on the Interstate Transport “Good Neighbor” Provision for the 2012 Fine Particulate Matter National Ambient Air Quality Standards under Clean Air Act Section 110(a)(2)(D)(i)(I)” (2016 memorandum). The 2016 memorandum describes EPA's past approach to addressing interstate transport, and provides EPA's general review of relevant modeling data and air quality projections as they relate to the 2012 annual PM 2.5 NAAQS. The 2016 memorandum provides information relevant to EPA Regional office review of the CAA section 110(a)(2)(D)(i)(I) “Good Neighbor” provision requirements in infrastructure SIPs with respect to the 2012 annual PM 2.5 NAAQS. This rulemaking considers information provided in that memorandum.

EPA is soliciting comment on our evaluation of Rhode Island's infrastructure SIP submission in this notice of proposed rulemaking. In Rhode Island's submission, a detailed list of Rhode Island Laws and previously SIP-approved Air Quality Regulations show how the various components of its EPA-approved SIP meet each of the requirements of section 110(a)(2) of the CAA for the 2012 PM 2.5 NAAQS. The following review evaluates the state's submissions in light of section 110(a)(2) requirements and relevant EPA guidance.

This section (also referred to in this action as an element) of the Act requires SIPs to include enforceable emission limits and other control measures, means or techniques, schedules for compliance, and other related matters. However, EPA has long interpreted emission limits and control measures for attaining the standards as being due when nonattainment planning requirements are due. 3 In the context of an infrastructure SIP, EPA is not evaluating the existing SIP provisions for this purpose. Instead, EPA is only evaluating whether the state's SIP has basic structural provisions for the implementation of the NAAQS.

The Rhode Island submittal cites Rhode Island General Laws (RIGL) and RI Air Pollution Control Regulations (APCR) that the state has adopted to control the emissions of criteria pollutants, including PM 2.5 , and PM 2.5 precursors sulfur dioxide (SO 2 ) and nitrogen oxides (NO X ).

RIGL § 23-23-5(12), “Powers and duties of the director,” authorizes the RI DEM Director “to make, issue, and amend rules and regulations . . . for the prevention, control, abatement, and limitation of air pollution . . . .” In addition, this section authorizes the Director to “prohibit emissions, discharges and/or releases and . . . require specific control technology.” The Rhode Island submittal cites more than a dozen specific rules that the state has adopted to control the emissions of PM 2.5 and the PM 2.5 precursors SO 2 and NO X . A few, with their EPA approval citation are listed here: No. 3—Particulate Emissions from Industrial Processes (81 FR 47708; July 22, 2016); No. 5—Fugitive Dust (46 FR 25446; May 7, 1981); No. 8—Sulfur Content of Fuels (83 FR 39888; August 13, 2018); No. 9—Air Pollution Control Permits (78 FR 63383; October 24, 2013); No. 12—Incinerators (07/22/2016; 81 FR 47708); No. 27—Control of Nitrogen Oxide Emissions (83 FR 39888; August 13, 2018); and No. 45—Rhode Island Diesel Engine Anti-Idling Program (73 FR 16203; March 27, 2008). See 40 CFR 52.2070.

EPA proposes that Rhode Island meets the infrastructure SIP requirements of section 110(a)(2)(A) with respect to the 2012 PM 2.5 NAAQS. As previously noted, EPA is not proposing to approve or disapprove any existing state provisions or rules related to SSM emissions or director's discretion in the context of section 110(a)(2)(A).

This section requires SIPs to provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to monitor, compile, and analyze ambient air quality data, and make such data available to EPA upon request. Each year, states submit annual air monitoring network plans to EPA for review and approval. EPA's review of these annual monitoring plans includes our evaluation of whether the state: (i) Monitors air quality at appropriate locations throughout the state using EPA-approved Federal Reference Methods or Federal Equivalent Method monitors; (ii) submits data to EPA's Air Quality System (AQS) in a timely manner; and (iii) provides EPA Regional Offices with prior notification of any planned changes to monitoring sites or the network plan.

RI DEM operates an air-quality monitoring network, and EPA approved the state's most recent Annual Air Monitoring Network Plan for PM 2.5 on October 25, 2018. 4 Furthermore, RI DEM populates AQS with air quality monitoring data in a timely manner, and provides EPA with prior notification when considering a change to its monitoring network or plan. EPA proposes that RI DEM meets the infrastructure SIP requirements of section 110(a)(2)(B) with respect to the 2012 PM 2.5 NAAQS.

States are required to include a program providing for enforcement of all SIP measures and the regulation of construction of new or modified stationary sources to meet new source review (NSR) requirements under prevention of significant deterioration (PSD) and nonattainment new source review (NNSR) programs. Part C of the CAA (sections 160—169B) addresses PSD, while part D of the CAA (sections 171-193) addresses NNSR requirements.

The evaluation of each state's submission addressing the infrastructure SIP requirements of section 110(a)(2)(C) covers the following: (i) Enforcement of SIP measures; (ii) PSD program for major sources and major modifications; and (iii) a permit program for minor sources and minor modifications.

The Rhode Island General Laws provide the Director of RI DEM with the legal authority to enforce air pollution control requirements. Such enforcement authority is provided by RIGL § 23-23-5, which grants the Director of RI DEM general enforcement power, inspection and investigative authority, and the power to issue administrative orders, among other things. In addition, APCR No. 9, “Air Pollution Control Permits,” sets forth requirements for new and modified major and minor stationary sources. Section 9.3 of the regulation contains specific requirements for new and modified minor sources. Section 9.4 of the regulation contains specific new source review requirements applicable to major stationary source or major modifications located in nonattainment areas. Section 9.5 contains specific new source review requirements applicable to major stationary sources or major modifications located in attainment or unclassifiable areas (PSD).

EPA proposes that Rhode Island has met the enforcement of SIP measures requirements of section 110(a)(2)(C) with respect to the 2012 PM 2.5 NAAQS.

PSD applies to new major sources or major modifications for pollutants where the area in which the source is located is in attainment of, or is unclassifiable with regard to, the relevant NAAQS. RI DEM's EPA-approved PSD rules, contained at APCR No. 9, contain provisions that address most applicable infrastructure SIP requirements related to all regulated NSR pollutants.

EPA's “Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2; Final Rule to Implement Certain Aspects of the 1990 Amendments Relating to New Source Review and Prevention of Significant Deterioration as They Apply in Carbon Monoxide, Particulate Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline” (Phase 2 Rule) was published on November 29, 2005 (70 FR 71612). Among other requirements, the Phase 2 Rule obligated states to revise their PSD programs to explicitly identify NO X as a precursor to ozone. See 70 FR 71679. This requirement is codified in 40 CFR 51.166, and requires that states submit SIP revisions incorporating the requirements of the rule, including provisions that would treat NO X as a precursor to ozone provisions. These SIP revisions were to have been submitted to EPA by states by June 15, 2007. See 70 FR 71683.

Rhode Island has already incorporated several of the changes required by the Phase 2 Rule but has not made the necessary change to the definition of “major stationary source” identifying NO X as a precursor to ozone. The December 2017 infrastructure submittal states that Rhode Island is amending APCR No. 9 to comply with 40 CFR 51.166 regarding identifying NO X as a precursor to ozone, and on March 26, 2018, Rhode Island submitted a SIP revision to address this deficiency. EPA is currently reviewing this submittal to verify that it satisfies this requirement. Therefore, we are proposing to conditionally approve section 110(a)(2)(C) with respect to this requirement of the Phase 2 Rule for the 2012 PM 2.5 NAAQS.

On May 16, 2008 (73 FR 28321), EPA issued the Final Rule on the “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM 2.5 )” (2008 NSR Rule). The 2008 NSR Rule finalized several new requirements for SIPs to address sources that emit direct PM 2.5 and other pollutants that contribute to secondary PM 2.5 formation. One of these requirements is for NSR permits to address pollutants responsible for the secondary formation of PM 2.5, otherwise known as precursors. In the 2008 rule, EPA identified precursors to PM 2.5 for the PSD program to be SO 2 and NO X (unless the state demonstrates to the Administrator's satisfaction or EPA demonstrates that NO X emissions in an area are not a significant contributor to that area's ambient PM 2.5 concentrations). The 2008 NSR Rule also specifies that Volatile Organic Compounds (VOCs) are not considered to be precursors to PM 2.5 in the PSD program unless the state demonstrates to the Administrator's satisfaction or EPA demonstrates that emissions of VOCs in an area are significant contributors to that area's ambient PM 2.5 concentrations.

The explicit references to SO 2, NO X , and VOCs as they pertain to secondary PM 2.5 formation are codified at 40 CFR 51.166(b)(49)(i)( b ) and 40 CFR 52.21(b)(50)(i)( b ). As part of identifying pollutants that are precursors to PM 2.5, the 2008 NSR Rule also required states to revise the definition of “significant” as it relates to a net emissions increase or the potential of a source to emit pollutants. Specifically, 40 CFR 51.166(b)(23)(i) and 40 CFR 52.21(b)(23)(i) define “significant” for PM 2.5 to mean the following emissions rates: 10 tons per year (tpy) of direct PM 2.5 ; 40 tpy of SO 2 ; and 40 tpy of NO X (unless the state demonstrates to the Administrator's satisfaction or EPA demonstrates that NO X emissions in an area are not a significant contributor to that area's ambient PM 2.5 concentrations). The deadline for states to submit SIP revisions to their PSD programs incorporating these changes was May 16, 2011. See 73 FR 28321 at 28341. 5

On January 18, 2011, Rhode Island submitted revisions to its PSD program incorporating the necessary changes obligated by the 2008 NSR Rule, with respect to provisions that explicitly identify precursors to PM 2.5 . EPA approved Rhode Island's 2011 SIP revision on April 21, 2015 (80 FR 22106).

The 2008 NSR Rule did not require states to immediately account for gases that could condense to form particulate matter, known as condensables, in PM 2.5 and PM 10 emission limits in NSR permits. Instead, EPA determined that states had to account for PM 2.5 and PM 10 condensables for applicability determinations and in establishing emissions limitations for PM 2.5 and PM 10 in PSD permits beginning on or after January 1, 2011. See 73 FR 28321 at 28334. This requirement is codified in 40 CFR 51.166(b)(49)(i)( a ) and 40 CFR 52.21(b)(50)(i)( a ). Revisions to states' PSD programs incorporating the inclusion of condensables were required be submitted to EPA by May 16, 2011 (See 73 FR 28321 at 28341).

Rhode Island's SIP-approved PSD program does not contain the exact language in 40 CFR 51.166(b)(49)(i)( a ). However, EPA has previously determined that Rhode Island's SIP-approved regulations define PM 2.5 and PM 10 such that the state's PSD program adequately accounts for the condensable fraction of PM 2.5 and PM 10 . See 78 FR 63383 at 63386 (October 24, 2013). Therefore, we are proposing that Rhode Island meets the requirements of section 110(a)(2)(C) for the 2012 PM 2.5 NAAQS regarding the requirements of the 2008 NSR Rule.

On October 20, 2010 (75 FR 64864), EPA issued the final rule on the “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM 2.5 )—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)” (2010 NSR Rule). This rule established several components for making PSD permitting determinations for PM 2.5 , including a system of “increments,” which is the mechanism used to estimate significant deterioration of ambient air quality for a pollutant. These increments are codified in 40 CFR 51.166(c) and 40 CFR 52.21(c).

The 2010 NSR Rule also established a new “major source baseline date” for PM 2.5 as October 20, 2010, and a new trigger date for PM 2.5 of October 20, 2011, in the definition of “minor source baseline date.” These revisions are codified in 40 CFR 51.166(b)(14)(i)( c ) and (b)(14)(ii)( c ), and 40 CFR 52.21(b)(14)(i)( c ) and (b)(14)(ii)( c ). Lastly, the 2010 NSR Rule revised the definition of “baseline area” to include a level of significance (SIL) of 0.3 micrograms per cubic meter (µg/m 3 ), annual average, for PM 2.5. This change is codified in 40 CFR 51.166(b)(15)(i) and 40 CFR 52.21(b)(15)(i). The December 2017 infrastructure submittal states that Rhode Island is amending APCR No. 9 to comply with the 2010 NSR Rule, and Rhode Island subsequently submitted the March 26, 2018 SIP revision to address these additional elements of PM 2.5 implementation in PSD permitting. EPA is currently reviewing the March 2018 submittal to verify that it satisfies the requirements of the 2010 NSR Rule. Therefore, we are proposing to conditionally approve this part of sub-element 2 of section 110(a)(2)(C) relating to requirements for state NSR regulations outlined within our 2010 NSR regulation for the 2012 PM 2.5 NAAQS.

With respect to Elements (C) and (J), EPA interprets the Clean Air Act to require each state to make an infrastructure SIP submission for a new or revised NAAQS that demonstrates that the air agency has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants. The requirements of Element (D)(i)(II) may also be satisfied by demonstrating the air agency has a complete PSD permitting program correctly addressing all regulated NSR pollutants. Rhode Island has shown that it currently has a PSD program in place that covers all regulated NSR pollutants, including GHGs, with the exception of the deficiencies described elsewhere in this document.

On June 23, 2014, the United States Supreme Court issued a decision addressing the application of PSD permitting requirements to GHG emissions. Utility Air Regulatory Group v. Envtl. Prot. Agency, 134 S.Ct. 2427. The Supreme Court said that EPA may not treat GHGs as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD permit. The Court also said that EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs, contain limitations on GHG emissions based on the application of Best Available Control Technology (BACT).

In accordance with the Supreme Court decision, on April 10, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (the D.C. Circuit) issued an amended judgment vacating the regulations that implemented Step 2 of the EPA's PSD and Title V Greenhouse Gas Tailoring Rule, but not the regulations that implement Step 1 of that rule. Step 1 of the Tailoring Rule covers sources that are required to obtain a PSD permit based on emissions of pollutants other than GHGs. Step 2 applied to sources that emitted only GHGs above the thresholds triggering the requirement to obtain a PSD permit. The amended judgment preserves, without the need for additional rulemaking by EPA, the application of the BACT requirement to GHG emissions from Step 1 or “anyway” sources. With respect to Step 2 sources, the D.C. Circuit's amended judgment vacated the regulations at issue in the litigation, including 40 CFR 51.166(b)(48)(v), “to the extent they require a stationary source to obtain a PSD permit if greenhouse gases are the only pollutant (i) that the source emits or has the potential to emit above the applicable major source thresholds, or (ii) for which there is a significant emission increase from a modification.”

On August 19, 2015, EPA amended its PSD and title V regulations to remove from the Code of Federal Regulations portions of those regulations that the D.C. Circuit specifically identified as vacated. EPA intends to further revise the PSD and title V regulations to fully implement the Supreme Court and D.C. Circuit rulings in a separate rulemaking. This future rulemaking will include revisions to additional definitions in the PSD regulations.

Some states have begun to revise their existing SIP-approved PSD programs in light of these court decisions, and some states may prefer not to initiate this process until they have more information about the additional planned revisions to EPA's PSD regulations. EPA is not expecting states to have revised their PSD programs in anticipation of EPA's additional actions to revise its PSD program rules in response to the court decisions for purposes of infrastructure SIP submissions. Instead, EPA is only evaluating such submissions to assure that the state's program addresses GHGs consistent with both the court decision, and the revisions to PSD regulations that EPA has completed at this time.

At present, EPA has determined that Rhode Island's SIP is sufficient to satisfy Elements (C), (D)(i)(II), and (J) with respect to GHGs. This is because the PSD permitting program previously approved by EPA into the SIP continues to require that PSD permits issued to “anyway sources” contain limitations on GHG emissions based on the application of BACT. Rhode Island has, however, removed step 2 from its PSD permitting program and has submitted these changes to EPA in its March 26, 2018 SIP submittal, which EPA is reviewing to verify that it is consistent with the D.C. Circuit's vacated provisions at 40 CFR 51.166(b)(48)(v). Nevertheless, the presence of these provisions in the previously-approved plan does not render the infrastructure SIP submission inadequate to satisfy Elements (C), (D)(i)(II), and (J). The SIP contains the PSD requirements for applying the BACT requirement to GHG emissions from “anyway sources” that are necessary at this time. The application of those requirements is not impeded by the presence of other previously-approved provisions regarding the permitting of Step 2 sources. Accordingly, the Supreme Court decision and subsequent D.C. Circuit judgment do not prevent EPA's approval of Rhode Island's infrastructure SIP as to the requirements of Elements (C), (as well as sub-elements (D)(i)(II), and (J)(iii)).

For the purposes of the 2012 PM 2.5 NAAQS infrastructure SIPs, EPA reiterates that NSR Reform is not in the scope of these actions.

In summary, we are proposing to approve the majority of Rhode Island's submittal for this sub-element with respect to the 2012 PM 2.5 NAAQS, but to conditionally approve the submittal regarding the identification of NO X as a precursor to ozone in the definition of major stationary source and regarding the revisions required by the 2010 NSR Rule, as described above.

To address the pre-construction regulation of the modification and construction of minor stationary sources and minor modifications of major stationary sources, an infrastructure SIP submission should identify the existing EPA-approved SIP provisions and/or include new provisions that govern the minor source pre-construction program that regulates emissions of the relevant NAAQS pollutants. EPA last approved Rhode Island's minor NSR program, on May 7, 1981 (46 FR 25446) as well as updates to that program. Since this date, Rhode Island and EPA have relied on the existing minor NSR program to ensure that new and modified sources not captured by the major NSR permitting programs do not interfere with attainment and maintenance of the 2012 PM 2.5 NAAQS.

We are proposing to find that Rhode Island meets the requirement to have a SIP-approved minor new source review permit program as required under Section 110(a)(2)(C) for the 2012 PM 2.5 NAAQS.

This section contains a comprehensive set of air quality management elements pertaining to the transport of air pollution with which states must comply. It covers the following five topics, categorized as sub-elements: Sub-element 1, Significant contribution to nonattainment, and interference with maintenance of a NAAQS; Sub-element 2, PSD; Sub-element 3, Visibility protection; Sub-element 4, Interstate pollution abatement; and Sub-element 5, International pollution abatement. Sub-elements 1 through 3 above are found under section 110(a)(2)(D)(i) of the Act, and these items are further categorized into the four prongs discussed below, two of which are found within sub-element 1. Sub-elements 4 and 5 are found under section 110(a)(2)(D)(ii) of the Act and include provisions insuring compliance with sections 115 and 126 of the Act relating to interstate and international pollution abatement.

Section 110(a)(2)(D)(i)(I) of the CAA requires a SIP to prohibit any emissions activity in the state that will contribute significantly to nonattainment or interfere with maintenance of the NAAQS in any downwind state. EPA commonly refers to these requirements as prong 1 (significant contribution to nonattainment) and prong 2 (interference with maintenance), or jointly as the “Good Neighbor” or “transport” provisions of the CAA. This rulemaking proposes action on the portion of Rhode Island's December 6, 2017 SIP submission that addresses the prong 1 and 2 requirements with respect to the 2012 PM 2.5 NAAQS.

EPA has developed a consistent framework for addressing the prong 1 and 2 interstate-transport requirements with respect to the PM 2.5 NAAQS in several previous federal rulemakings. The four basic steps of that framework include: (1) Identifying downwind receptors that are expected to have problems attaining or maintaining the NAAQS; (2) identifying which upwind states contribute to these identified problems in amounts sufficient to warrant further review and analysis; (3) for states identified as contributing to downwind air quality problems, identifying upwind emissions reductions necessary to prevent an upwind state from significantly contributing to nonattainment or interfering with maintenance of the NAAQS downwind; and (4) for states that are found to have emissions that significantly contribute to nonattainment or interfere with maintenance of the NAAQS downwind, reducing the identified upwind emissions through adoption of permanent and enforceable measures. This framework was most recently applied with respect to PM 2.5 in the Cross-State Air Pollution Rule (CSAPR), which addressed both the 1997 and 2006 PM 2.5 standards, as well as the 1997 ozone standard. See 76 FR 48208 (August 8, 2011).

EPA's analysis for CSAPR, conducted consistent with the four-step framework, included air-quality modeling that evaluated the impacts of 38 eastern states on identified receptors in the eastern United States. EPA indicated that, for step 2 of the framework, states with impacts on downwind receptors that are below the contribution threshold of 1% of the relevant NAAQS would not be considered to significantly contribute to nonattainment or interfere with maintenance of the relevant NAAQS, and would, therefore, not be included in CSAPR. See 76 FR 48220. EPA further indicated that such states could rely on EPA's analysis for CSAPR as technical support in order to demonstrate that their existing or future interstate transport SIP submittals are adequate to address the transport requirements of 110(a)(2)(D)(i)(I) with regard to the relevant NAAQS. Id.

In addition, as noted above, on March 17, 2016, EPA released the 2016 memorandum to provide information to states as they develop SIPs addressing the Good Neighbor provision as it pertains to the 2012 PM 2.5 NAAQS. Consistent with step 1 of the framework, the 2016 memorandum provides projected future-year annual PM 2.5 design values for monitors throughout the country based on quality-assured and certified ambient-monitoring data and recent air-quality modeling and explains the methodology used to develop these projected design values. The memorandum also describes how the projected values can be used to help determine which monitors should be further evaluated to potentially address if emissions from other states significantly contribute to nonattainment or interfere with maintenance of the 2012 PM 2.5 NAAQS at these monitoring sites. The 2016 memorandum explained that the pertinent year for evaluating air quality for purposes of addressing interstate transport for the 2012 PM 2.5 NAAQS is 2021, the attainment deadline for 2012 PM 2.5 NAAQS nonattainment areas classified as Moderate. Accordingly, because the available data included 2017 and 2025 projected average and maximum PM 2.5 design values calculated through the CAMx photochemical model, the memorandum suggests approaches states might use to interpolate PM 2.5 values at sites in 2021.

For all, but one, monitoring sites in the eastern United States, the modeling data provided in the 2016 memorandum showed that monitors were expected to both attain and maintain the 2012 PM 2.5 NAAQS in both 2017 and 2025. The modeling results project that this one monitor, the Liberty monitor, (ID number 420030064), located in Allegheny County, Pennsylvania, will be above the 2012 annual PM 2.5 NAAQS in 2017, but only under the model's maximum projected conditions, which are used in EPA's interstate transport framework to identify maintenance receptors. The Liberty monitor (along with all the other Allegheny County monitors) is projected to both attain and maintain the NAAQS in 2025. The 2016 memorandum suggests that under such a condition (again, where EPA's photochemical modeling indicates an area will maintain the 2012 annual PM 2.5 NAAQS in 2025, but not in 2017), further analysis of the site should be performed to determine if the site may be a nonattainment or maintenance receptor in 2021 (which, again, is the attainment deadline for moderate PM 2.5 areas). The memorandum also indicates that for certain states with incomplete ambient monitoring data, additional information including the latest available data, should be analyzed to determine whether there are potential downwind air quality problems that may be impacted by transported emissions. This rulemaking considers these analyses for Rhode Island, as well as additional analysis conducted by EPA during review of Rhode Island's submittal.

To develop the projected values presented in the memorandum, EPA used the results of nationwide photochemical air-quality modeling that it recently performed to support several rulemakings related to the ozone NAAQS. Base-year modeling was performed for 2011. Future-year modeling was performed for 2017 to support the proposed CSAPR Update for the 2008 Ozone NAAQS. See 80 FR 75705 (December 3, 2015). Future-year modeling was also performed for 2025 to support the Regulatory Impact Assessment of the final 2015 Ozone NAAQS. 6 The outputs from these model runs included hourly concentrations of PM 2.5 that were used in conjunction with measured data to project annual average PM 2.5 design values for 2017 and 2025. Areas that were designated as moderate PM 2.5 nonattainment areas for the 2012 annual PM 2.5 NAAQS in 2014 must attain the NAAQS by December 31, 2021, or as expeditiously as practicable. Although neither the available 2017 nor 2025 future-year modeling data correspond directly to the future-year attainment deadline for moderate PM 2.5 nonattainment areas, EPA believes that the modeling information is still helpful for identifying potential nonattainment and maintenance receptors in the 2017 through 2021 period. Assessing downwind PM 2.5 air-quality problems based on estimates of air-quality concentrations in a future year aligned with the relevant attainment deadline is consistent with the instructions from the United States Court of Appeals for the District of Columbia Circuit in North Carolina v. EPA, 531 F.3d 896, 911-12 (D.C. Cir. 2008), that upwind emission reductions should be harmonized, to the extent possible, with the attainment deadlines for downwind areas.

On December 6, 2017, RI DEM submitted an infrastructure SIP for the 2012 PM 2.5 NAAQS that addressed prongs 1 and 2. The state's SIP submission relied in part on EPA's analysis performed for the CSAPR rulemaking to conclude that the state will not significantly contribute to nonattainment or interfere with maintenance of the 2012 PM 2.5 NAAQS in any downwind area.

EPA analyzed the state's December 2017 submittal to determine whether it fully addressed the prong 1 and 2 transport provisions with respect to the 2012 PM 2.5 NAAQS. As discussed below, EPA concludes that emissions of PM 2.5 and PM 2.5 precursors (NO X and SO 2 ) in Rhode Island will not significantly contribute to nonattainment or interfere with maintenance of the 2012 PM 2.5 NAAQS in any other state.

As noted above, the modeling discussed in EPA's 2016 memorandum identified one potential maintenance receptor for the 2012 PM 2.5 NAAQS at the Liberty monitor (ID number 420030064), located in Allegheny County. The memorandum also identified certain states with incomplete ambient monitoring data as areas that may require further analysis to determine whether there are potential downwind air quality problems that may be impacted by transported emissions.

While developing the 2011 CSAPR rulemaking, EPA modeled the impacts of all 38 eastern states in its modeling domain on fine particulate matter concentrations at downwind receptors in other states in the 2012 analysis year in order to evaluate the contribution of upwind states on downwind states with respect to the 1997 and 2006 PM 2.5 . Although the modeling was not conducted for purposes of analyzing upwind states' impacts on downwind receptors with respect to the 2012 PM 2.5 NAAQS, the contribution analysis for the 1997 and 2006 standards can be informative for evaluating Rhode Island's compliance with the Good Neighbor provision for the 2012 standard.

This CSAPR modeling showed that Rhode Island had no discernable impact (0.000 μg/m 3 ) on the Liberty monitor in Allegheny County, which is the only out-of-state monitor that may be a nonattainment or maintenance receptor in 2021. Although EPA has not proposed a specific threshold for evaluating the 2012 PM 2.5 NAAQS, EPA notes that Rhode Island's impact on the Liberty monitor is far below the threshold of 1% for the annual PM 2.5 NAAQS ( i.e., 0.12 μg/m 3 ) that EPA previously used to evaluate the contribution of upwind states to downwind air-quality monitors. (A spreadsheet showing CSAPR contributions for ozone and PM 2.5 is included in docket EPA-HQ-OAR-2009-0491-4228.) Therefore, even if the Liberty monitor were considered a receptor for purposes of transport, the EPA proposes to conclude that Rhode Island will not significantly contribute to nonattainment, or interfere with maintenance, of the 2012 PM 2.5 NAAQS at that monitor.

In addition, the Liberty monitor is already close to attaining the 2012 PM 2.5 NAAQS, and expected emissions reductions in the next four years will lead to additional reductions in measured PM 2.5 concentrations. There are both local and regional components to measured PM 2.5 levels. All monitors in Allegheny County have a regional component, with the Liberty monitor most strongly influenced by local sources. This is confirmed by the fact that annual average measured concentrations at the Liberty monitor have consistently been 2-4 μg/m 3 higher than other monitors in Allegheny County.

Specifically, previous CSAPR modeling showed that regional emissions from upwind states, particularly SO 2 and NO X emissions, contribute to PM 2.5 nonattainment at the Liberty monitor. In recent years, large SO 2 and NO X reductions from power plants have occurred in Pennsylvania and states upwind from the Greater Pittsburgh region. Pennsylvania's energy sector emissions of SO 2 will have decreased 166,000 tons between 2015 through 2017 as a result of CSAPR implementation. This is due to both the installation of emissions controls and retirements of electric generating units (EGUs). Projected power plant closures and additional emissions controls in Pennsylvania and upwind states will help further reduce both direct PM 2.5 and PM 2.5 precursors. Regional emission reductions will continue to occur from current on-the-books federal and state regulations such as the federal on-road and non-road vehicle programs, and various rules for major stationary emissions sources. See proposed approval of the Ohio Infrastructure SIP for the 2012 PM 2.5 NAAQS (82 FR 57689; December 7, 2017).

In addition to regional emissions reductions and plant closures, additional local reductions to both direct PM 2.5 and SO 2 emissions are expected to occur and should contribute to further declines in Allegheny County's PM 2.5 monitor concentrations. For example, significant SO 2 reductions have recently occurred at US Steel's integrated steel mill facilities in southern Allegheny County as part of a 1-hr SO 2 NAAQS SIP. 7 Reductions are largely due to declining sulfur content in the Clairton Coke Work's coke oven gas (COG). Because this COG is burned at US Steel's Clairton Coke Works, Irvin Mill, and Edgar Thompson Steel Mill, these reductions in sulfur content should contribute to much lower PM 2.5 precursor emissions in the immediate future. The Allegheny SO 2 SIP also projects lower SO 2 emissions resulting from vehicle fuel standards, reductions in general emissions due to declining population in the Greater Pittsburgh region, and several shutdowns of significant sources of emissions in Allegheny County.

EPA modeling projections, the recent downward trend in local and upwind emissions reductions, the expected continued downward trend in emissions between 2017 and 2021, and the downward trend in monitored PM 2.5 concentrations all indicate that the Liberty monitor will attain and be able to maintain the 2012 annual PM 2.5 NAAQS by 2021. See proposed approval and final approval of the Ohio Infrastructure SIP (82 FR 57689, December 7, 2017and 83 FR 4845, February 2, 2018).

As noted in the 2016 memorandum, several states have had recent data-quality issues identified as part of the PM 2.5 designations process. In particular, some ambient PM 2.5 data for certain time periods between 2009 and 2013 in Florida, Illinois, Idaho, Tennessee, and Kentucky did not meet all data-quality requirements under 40 CFR part 50, appendix L. The lack of data means that the relevant areas in those states could potentially be in nonattainment or be maintenance receptors in 2021. However, as mentioned above, EPA's analysis for the 2011 CSAPR rulemaking with respect to the 2006 PM 2.5 NAAQS determined that Rhode Island's impact to all these downwind receptors would be well below the 1% contribution threshold for this NAAQS. That conclusion informs the analysis of Rhode Island's contributions for purposes of the 2012 PM 2.5 NAAQS as well. Given this, and the fact, discussed below, that the state's PM 2.5 design values for all ambient monitors have been well below the 2012 PM 2.5 NAAQS during the 2007 through 2009 period to the 2013 through 2015 period, EPA concludes that it is highly unlikely that Rhode Island significantly contributes to nonattainment or interferes with maintenance of the 2012 PM 2.5 NAAQS in areas with data-quality issues. 8

Information in Rhode Island's December 2017 SIP submission corroborates EPA's proposed conclusion that Rhode Island's SIP meets its Good Neighbor obligations. The state's technical analysis in that submission includes 24-hour and annual PM 2.5 values for 2013 through 2015 for the six official monitors in Rhode Island as well as for monitors in the neighboring states of Massachusetts and Connecticut, a list of Rhode Island's 10 largest point sources of PM 2.5, and results of EPA's CSAPR modeling. As mentioned above, the state's PM 2.5 design values for all ambient monitors have been well below the 2012 PM 2.5 NAAQS since 2007 through 2009. In addition, the 24-hour and annual design values for all monitors in the neighboring states of Massachusetts and Connecticut also have been below the 2012 PM 2.5 NAAQS since 2007 through 2009.

At specific monitors in Rhode Island, the highest 24-hour and annual mean values satisfying minimum data completion criteria were 49 μg/m 3 in 1999 and 14.9 μg/m 3 in 2000, respectively, at a monitor in Providence. 9 However, since 2004, all monitors in the state have been below the 2012 PM 2.5 NAAQS.

Second, Rhode Island's sources are well-controlled. Rhode Island's 2017 submission indicates that the state has many SIP-approved regulations and programs that limit emissions of PM 2.5 and the PM 2.5 precursors SO 2 and NO X . 10 Among others, these regulations include APCR No. 3 “Particulate Emissions from Industrial Processes” (81 FR 47708; July 22, 2016); APCR No. 8 “Sulfur Content of Fuels” (83 FR 39888; August 13, 2018); APCR No. 9 “Air Pollution Control Permits” (78 FR 63383; October 24, 2013); APCR No. 13 “Particulate Emissions from Fossil Fuel Fired Steam or Hot Water Generating Units” (48 FR 13026; March 29, 1983); and APCR No. 27 “Control of Nitrogen Oxide Emissions” (83 FR 39888; August 13, 2018).

It should also be noted that Rhode Island is not in the CSAPR program because EPA analyses show that the state does not emit ozone-season NO X at a level that contributes significantly to non-attainment or interferes with maintenance of the 1997 and 2006 PM 2.5 NAAQS in any other state.

For the reasons explained herein, EPA agrees with Rhode Island's conclusions and proposes to determine that Rhode Island will not significantly contribute to nonattainment or interfere with maintenance of the 2012 PM 2.5 NAAQS in any other state. Therefore, EPA proposes to approve the December 2017 infrastructure SIP submission from Rhode Island with regard to prongs 1 and 2 of CAA section 110(a)(2)(D)(i)(I) for the 2012 PM 2.5 NAAQS.

To prevent significant deterioration of air quality, this sub-element requires SIPs to include provisions that prohibit any source or other type of emissions activity in one state from interfering with measures that are required in any other state's SIP under Part C of the CAA. One way for a state to meet this requirement, specifically with respect to in-state sources and pollutants that are subject to PSD permitting, is through a comprehensive PSD permitting program that applies to all regulated NSR pollutants and that satisfies the requirements of EPA's PSD implementation rules. For in-state sources not subject to PSD, this requirement can be satisfied through a fully-approved nonattainment new source review (NNSR) program with respect to any previous NAAQS. EPA approved Rhode Island's latest NNSR regulations on April 21, 2015 (80 FR 22106). These regulations contain provisions for how the state must treat and control sources in nonattainment areas, consistent with 40 CFR 51.165, or appendix S to 40 CFR 51.

As noted above and in Element (C), Rhode Island's PSD program does not fully satisfy the requirements of EPA's PSD implementation rules. As stated previously, Rhode Island submitted, on March 26, 2018, a SIP revision to address these deficiencies, and EPA is reviewing this submittal to verify that it satisfies the required provisions. Consequently, we are proposing to conditionally approve Rhode Island's infrastructure SIP submission for the 2012 PM 2.5 NAAQS related to section 110(a)(2)(D)(i)(II) Prong 3 for the reasons discussed under Element (C).

Regarding the applicable requirements for visibility protection of section 110(a)(2)(D)(i)(II), states are subject to visibility and regional haze program requirements under part C of the CAA (which includes sections 169A and 169B). The 2009, 2011, and 2013 memoranda recommend that these requirements can be satisfied by an approved SIP addressing reasonably attributable visibility impairment, if required, or an approved SIP addressing regional haze. A fully approved regional haze SIP meeting the requirements of 40 CFR 51.308 will ensure that emissions from sources under an air agency's jurisdiction are not interfering with measures required to be included in other air agencies' plans to protect visibility.

Rhode Island's Regional Haze SIP was approved by EPA on May 22, 2012 (77 FR 30214). Accordingly, EPA proposes that Rhode Island meets the visibility protection requirements of 110(a)(2)(D)(i)(II) for the 2012 PM 2.5 NAAQS.

This sub-element requires that each SIP contain provisions requiring compliance with requirements of section 126 relating to interstate pollution abatement. Section 126(a) requires new or modified sources to notify neighboring states of potential impacts from the source. The statute does not specify the method by which the source should provide the notification. States with SIP-approved PSD programs must have a provision requiring such notification by new or modified sources.

EPA approved Rhode Island's PSD program, as well as updates to that program, with the most recent approval occurring on April 21, 2015 (80 FR 22106), which includes a provision requiring notice to neighboring states of RI DEM's intention to either issue a draft PSD permit or deny a permit application. See APCR No. 9, section 9.12.3(e). Therefore, we propose to approve Rhode Island's compliance with the infrastructure SIP requirements of section 126(a) with respect to the 2012 PM 2.5 NAAQS. Rhode Island has no obligations under any other provision of section 126.

This sub-element also requires each SIP to contain provisions requiring compliance with the applicable requirements of section 115 relating to international pollution abatement. Rhode Island does not have any pending obligations under section 115 for the 2012 PM 2.5 NAAQS. Therefore, EPA is proposing that Rhode Island meets the applicable infrastructure SIP requirements of section 110(a)(2)(D)(ii) related to section 115 of the CAA (international pollution abatement) for the 2012 PM 2.5 NAAQS.

Section 110(a)(2)(E)(i) requires each SIP to provide assurances that the state will have adequate personnel, funding, and legal authority under state law to carry out its SIP. In addition, section 110(a)(2)(E)(ii) requires each state to comply with the requirements under CAA section 128 about state boards. Finally, section 110(a)(2)(E)(iii) requires that, where a state relies upon local or regional governments or agencies for the implementation of its SIP provisions, the state retains responsibility for ensuring implementation of SIP obligations with respect to relevant NAAQS. Section 110(a)(2)(E)(iii), however, does not apply to this action because Rhode Island does not rely upon local or regional governments or agencies for the implementation of its SIP provisions.

Rhode Island, through its infrastructure SIP submittals, has documented that its air agency has the requisite authority and resources to carry out its SIP obligations. Rhode Island cites to RIGL § 23-23-5, which provides the Director of DEM with the legal authority to enforce air pollution control requirements. Additionally, this statute provides the Director with the authority to assess preconstruction permit fees and annual operating permit fees from air emissions sources and establishes a general revenue reserve account within the general fund to finance the state clean air programs. RI DEM further cites APCR No. 28, “Operating Permit Fees,” which requires that major sources pay annual operating permit fees. Finally, Section III of the 1972 RI SIP specifies RI DEM's legal authority to implement SIP measures, and Section VII of the 1972 SIP describes the resources and manpower estimates for RI DEM.

EPA proposes that Rhode Island meets the infrastructure SIP requirements of this portion of section 110(a)(2)(E) with respect to the 2012 PM 2.5 NAAQS.

Section 110(a)(2)(E)(ii) requires each SIP to contain provisions that comply with the state board requirements of section 128 of the CAA. That provision contains two explicit requirements: (1) That any board or body which approves permits or enforcement orders under this chapter shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits and enforcement orders under this chapter, and (2) that any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed.

In Rhode Island, no board or body approves permits or enforcement orders; these are approved by the Director of RI DEM. Thus, with respect to this sub-element, Rhode Island is subject only to the requirements of paragraph (a)(2) of section 128 of the CAA (regarding conflicts of interest). The Rhode Island Code of Ethics (RIGL § 36-14) applies to state employees and public officials and requires disclosure of potential conflicts of interest. It also provides that “No person subject to this Code of Ethics shall have any interest, financial or otherwise, direct or indirect, or engage in any business, employment, transaction, or professional activity, or incur any obligation of any nature, which is in substantial conflict with the proper discharge of his or her duties or employment in the public interest and of his or her responsibilities.” See RIGL § 36-14-5(a). RIGL §§ 36-14-1 through -7 were approved by EPA into the Rhode Island SIP on April 20, 2016 (81 FR 23175).

Consequently, EPA proposes that Rhode Island has met the applicable infrastructure SIP requirements for this sub-element for the 2012 PM 2.5 NAAQS.

States must establish a system to monitor emissions from stationary sources and submit periodic emissions reports. Each plan shall also require the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources. The state plan shall also require periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and correlation of such reports by each state agency with any emission limitations or standards. Lastly, the reports shall be available at reasonable times for public inspection.

Rhode Island's infrastructure submittal references existing state laws and regulations previously approved by EPA that require sources to monitor emissions and submit reports and that provide for the correlation of emissions data with emission limitations and for the public availability of emission data. For example, Rhode Island's submittal references RIGL § 23-23-5(16), which authorizes RI DEM to require a source to install, maintain, and use air pollution emission monitoring devices and to submit periodic reports on the nature and amounts of emissions. In addition, under RIGL § 23-23-13 and the Rhode Island public records act, see RIGL Title 38, emissions data are made available to the public and are not protected as “trade secret or proprietary information.” With respect to state regulations, APCR No. 9, “Air Pollution Control Permits,” requires emissions testing of permitted processes within 180 days of full operation and specifies that preconstruction permits issued contain an emissions testing section. In addition, APCR No. 6, “Continuous Emission Monitors,” requires certain sources to install, calibrate, operate, and maintain a continuous emission monitoring system and to report certain emissions-related data to RI DEM. Finally, APCR No. 14, “Record Keeping and Reporting,” requires emission sources to report emissions and other data to RI DEM annually, and provides that information in certain reports obtained pursuant to APCR No. 14 “will be correlated with applicable emission and other limitations and will be available for public inspection.”

Therefore, EPA proposes that Rhode Island meets the infrastructure SIP requirements of section 110(a)(2)(F) with respect to the 2012 PM 2.5 NAAQS.

This section requires that a plan provide for state authority comparable to that provided to the EPA Administrator in section 303 of the CAA, and adequate contingency plans to implement such authority. Section 303 of the CAA provides authority to the EPA Administrator to seek a court order to restrain any source from causing or contributing to emissions that present an “imminent and substantial endangerment to public health or welfare, or the environment.” Section 303 further authorizes the Administrator to issue “such orders as may be necessary to protect public health or welfare or the environment” in the event that “it is not practicable to assure prompt protection . . . by commencement of such civil action.”

We propose to find that a combination of state statutes and regulations discussed in RI DEM's submittal provides for authority comparable to that in CAA section 303. The statutes and regulations are: RIGL §§ 10-20, 23-23-16, 23-23.1-5, 23-23.1-7, 23-23.1-8, 42-17.1-2, and APCR No. 7. In our proposal to approve this requirement for Rhode Island's infrastructure SIP submissions for the 1997 PM 2.5 , 2006 PM 2.5 , 2008 lead, 2008 ozone, 2010 NO 2 , and 2010 SO 2 NAAQS (81 FR 10168; February 29, 2016), we explained how this combination of authorities provides Rhode Island with authority comparable to that in CAA § 303. See 81 FR 10168, 10177 (February 29, 2016). These statutes and the regulation apply in the same manner to particulate matter emissions as they do to emissions of the other NAAQS pollutants. Accordingly, for the reasons contained in our proposal to approve this element for the 1997 PM 2.5, 2006 PM 2.5 , 2008 lead, 2008 ozone, 2010 NO 2 , and 2010 SO 2 infrastructure SIPs, we propose to find that this combination of state statutes and regulations provide for authority comparable to that in CAA § 303 for the 2012 PM 2.5 infrastructure SIP.

Section 110(a)(2)(G) also requires a state to submit for EPA approval a contingency plan (also known as an emergency episode plan) to implement the air agency's emergency episode authority for any Air Quality Control Region (AQCR) within the state that is classified as Priority I, IA, or II. See 40 CFR 51.152(c). A contingency plan is not required if the entire state is classified as Priority III for a particular pollutant. Id. There is only one AQCR in Rhode Island—the Metropolitan Providence Interstate AQCR—and Rhode Island's portion thereof is classified as a Priority I area for PM, SO X, carbon monoxide, and ozone and as a Priority III area for NO 2 . See 40 CFR 52.2071. In general, contingency plans for Priority I, IA, and II areas must meet the applicable requirements of 40 CFR part 51, subpart H (40 CFR 51.150 through 51.153) (“Prevention of Air Pollution Emergency Episodes”) for the relevant NAAQS, if the NAAQS is covered by those regulations. In the case of PM 2.5, EPA has not promulgated regulations that provide the ambient levels to classify different priority levels for the 2012 standard (or any PM 2.5 NAAQS). See 40 CFR 51.150. Consequently, Rhode Island's SIP is not required to contain an emergency contingency plan meeting the specific requirements of 40 CFR 51.151 and 51.152 with respect to the 2012 PM 2.5 NAAQS.

Although PM 2.5 is not explicitly included in the contingency plan requirements of 40 CFR subpart H, the EPA 2009 memorandum recommends in the context of the 2006 PM 2.5 NAAQS that states develop emergency episode plans for any area that has monitored and recorded 24-hour PM 2.5 levels greater than 140 µg/m 3 since 2006. EPA's review of Rhode Island's certified air-quality data in EPA's Air Quality System (AQS) indicates that the highest 24-hour PM 2.5 concentration since 2006 ( i.e., data through 2017) is 92.5 µg/m 3 , which occurred in 2015 at a monitor in Providence. Although not expected, if PM 2.5 conditions were to change, Rhode Island does have general authority, as noted previously (81 FR 10168; February 29, 2016), to order a source to cease operations if it is determined that emissions from the source pose an immediate danger, or unreasonable and emergency risk, to public health or safety or to the environment. In addition, Rhode Island posts near real-time air-quality data, air-quality predictions and historical data on the RI DEM website. RI DEM's predictions are also displayed daily in the Providence Journal. Alerts are sent by email to many affected parties, including emissions sources, concerned individuals, schools, health and environmental agencies and the media. Alerts include information about the health implications of elevated pollutant levels and list actions to reduce emissions. Furthermore, daily forecasted ozone and fine-particle levels are made available on the internet through the EPA AirNow and EnviroFlash systems. Information about these two systems is available on EPA's website at www.airnow.gov. Notices are sent to EnviroFlash participants when levels are forecast to exceed the current 8-hour ozone or 24-hour PM 2.5 standard.

EPA proposes that Rhode Island meets the applicable infrastructure SIP requirements for section 110(a)(2)(G) with respect to the 2012 PM 2.5 NAAQS.

This section requires that a state's SIP provide for revision in response to: Changes in the NAAQS, availability of improved methods for attaining the NAAQS, or an EPA finding that the SIP is substantially inadequate. In 1973, it was determined that Rhode Island's original SIP did not fully satisfy section 110(a)(2)(H) and EPA promulgated federal regulations to address the gap in the SIP. See 40 CFR 52.2080. Since Rhode Island's December 6, 2017, submittal does not address the gap in the SIP that led to a disapproval in 1973, EPA proposes to find that Rhode Island has not met applicable infrastructure SIP requirements for element (H) with respect to the 2012 PM 2.5 NAAQS. Accordingly, EPA proposes to disapprove the state's submittal for element (H). No further action by EPA or the state is required, however, because remedying federal regulations are already in place. Moreover, mandatory sanctions under CAA section 179 are inapplicable, because the submittal is not required under CAA title I part D nor in response to a SIP call under CAA section 110(k)(5).

The CAA requires that each plan or plan revision for an area designated as a nonattainment area meet the applicable requirements of part D of the CAA. Part D relates to nonattainment areas. EPA has determined that section 110(a)(2)(I) is not applicable to the infrastructure SIP process. Instead, EPA takes action on part D attainment plans through separate processes.

Section 110(a)(2)(J) of the CAA requires that each SIP meet the applicable requirements of section 121 of the CAA (relating to consultation), section 127 of the CAA (relating to public notification), and part C of subchapter I of the CAA (relating to PSD and visibility protection). The evaluation of the submission from Rhode Island with respect to these requirements is described below.

Pursuant to CAA section 121, a state must provide a satisfactory process for consultation with local governments and Federal Land Managers (FLMs) in carrying out its NAAQS implementation requirements.

Rhode Island General Law § 23-23-5, authorizes the RI DEM Director “[t]o advise, consult, and cooperate with the cities and towns and other agencies of the state, federal government, and other states and interstate agencies, and with effective groups in industries in furthering the purposes of this chapter.” EPA approved this statute into Rhode Island's SIP on April 20, 2016. See 81 FR 23175. In addition, APCR No. 9, which is in Rhode Island's SIP, see 78 FR 63383 (October 24, 2013), directs RI DEM to notify relevant municipal officials and FLMs, among others, of tentative determinations by RI DEM with respect to permit applications for major stationary sources and major modifications.

EPA proposes that Rhode Island has met the infrastructure SIP requirements of this portion of section 110(a)(2)(J) with respect to the 2012 PM 2.5 NAAQS.

Pursuant to CAA section 127, states must notify the public if NAAQS are exceeded in an area, advise the public of health hazards associated with exceedances, and enhance public awareness of measures that can be taken to prevent exceedances and of ways in which the public can participate in regulatory and other efforts to improve air quality.

Rhode Island's APCR No. 10, “Air Pollution Episodes,” specifies criteria for, and measures to be implemented during, air pollution alerts, warnings, and episodes. In addition, the RI DEM website includes near real-time air quality data, air quality predictions and a record of historical data. DEM's predictions are also displayed daily in the Providence Journal, a newspaper with statewide circulation. Alerts are sent by email to many affected parties, including emissions sources, concerned individuals, schools, health and environmental agencies and the media. Alerts include information about the health implications of elevated pollutant levels and list actions to reduce emissions. In addition, AQS summaries of the year's air-quality-monitoring results are issued annually. The summaries are sent to a mailing list of interested parties and posted on the RI DEM website. Rhode Island is also an active partner in EPA's AirNow and EnviroFlash air-quality alert programs. EPA proposes that Rhode Island meets the infrastructure SIP requirements of this portion of section 110(a)(2)(J) with respect to the 2012 PM 2.5 NAAQS.

State plans must meet applicable requirements of part C of the CAA related to PSD. Rhode Island's PSD program in the context of infrastructure SIPs has already been discussed in the paragraphs addressing sections 110(a)(2)(C) and 110(a)(2)(D)(i)(II) and, as we have noted, does not fully satisfy the requirements of EPA's PSD implementation rules. However, the December 2017 infrastructure submittal states that Rhode Island is amending APCR No. 9 to comply with 40 CFR 51.166 regarding PM 2.5 emissions and identifying NO X as a precursor to ozone. As stated previously, Rhode Island submitted, on March 26, 2018, a SIP to address these deficiencies, which EPA is currently reviewing to verify that it satisfies the required provisions. Consequently, we are proposing to conditionally approve the PSD sub-element of section 110(a)(2)(J) for the 2012 PM 2.5 NAAQS, consistent with the actions we are proposing for sections 110(a)(2)(C) and 110(a)(2)(D)(i)(II).

Regarding visibility protection, states are subject to visibility and regional haze program requirements under part C of the CAA (which includes sections 169A and 169B). In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Thus, as noted in EPA's 2013 memorandum, we find that there is no new visibility obligation “triggered” under section 110(a)(2)(J) when a new NAAQS becomes effective. In other words, the visibility protection requirements of section 110(a)(2)(J) are not germane to infrastructure SIPs for the 2012 PM 2.5 NAAQS.

Based on the above analysis, EPA proposes that Rhode Island meets the infrastructure SIP requirements of section 110(a)(2)(J) with respect to the 2012 PM 2.5 NAAQS.

Section 110(a)(2)(K) of the Act requires that a SIP provide for the performance of such air-quality modeling as the EPA Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any air pollutant for which EPA has established a NAAQS, and the submission, upon request, of data related to such air quality modeling. EPA has published the Guideline on Air Quality Models (“Guideline”) at 40 CFR part 51, Appendix W, for predicting the effects of emissions of criteria pollutants on ambient air quality. The Guideline is used by EPA, other federal, state, territorial, local, and tribal air quality agencies, and industry to prepare and review new or modified source permits, SIP submittals or revisions, conformity, and other air quality assessments required under the CAA and EPA regulations. EPA has interpreted section 110(a)(2)(K) to require a state submit or reference the statutory or regulatory provisions that provide the air agency with the authority to conduct such air quality modeling and to provide such modeling data to EPA upon request. See 2013 Memorandum at 55.

Rhode Island state law implicitly authorizes RI DEM to perform air quality modeling and to provide such modeling data to EPA upon request. See RIGL §§ 23-23-2, 23-23-5. In addition, Rhode Island APCR No. 9, “Air Pollution Control Permits,” requires permit applicants to submit air quality modeling based on applicable air quality models, data bases, and other requirements specified in the Guideline in Appendix W to demonstrate impacts of new and modified major sources. The modeling data are sent to EPA along with the draft major permit.

The state also collaborates with the Ozone Transport Commission (OTC) and the Mid-Atlantic Regional Air Management Association and EPA to perform large-scale urban airshed modeling for ozone and PM, if necessary. EPA proposes that Rhode Island meets the infrastructure SIP requirements of section 110(a)(2)(K) with respect to the 2012 PM 2.5 NAAQS.

This section requires SIPs to mandate that each major stationary source pay permitting fees to cover the costs of reviewing, approving, implementing, and enforcing a permit.

Section 23-23-5 of the RIGL provides RI DEM with the authority to collect fees for preconstruction permits and operating permits for air emissions sources. In addition, RI DEM's “Rules and Regulations Governing the Establishment of Various Fees” sets forth permit fee requirements for air emissions sources and the legal authority to collect those fees. These rules and regulations are promulgated pursuant to RIGL Chapter 23-23 Air Pollution, and Chapter 42-35, Administrative Procedures. Rhode Island's infrastructure SIP submittal also refers to its regulations implementing its operating permit program pursuant to 40 CFR part 70. Rhode Island's title V permitting program, APCR No. 28, “Operating Permit Fees,” requires major sources to pay annual operating permit fees. EPA's full approval of Rhode Island's title V program (APCR No. 28) became effective on November 30, 2001. See 66 FR 49839 (October 1, 2001). To gain this approval, Rhode Island demonstrated the ability to collect sufficient fees to run the program. The fees collected from title V sources are above the presumptive minimum in accordance with 40 CFR 70.9(b)(2)(i). EPA proposes that Rhode Island meets the infrastructure SIP requirements of section 110(a)(2)(L) for the 2012 PM 2.5 NAAQS.

To satisfy Element (M), states must provide for consultation with, and participation by, local political subdivisions affected by the SIP. Rhode Island's infrastructure submittals reference RIGL § 23-23-5, which provides for consultation with affected local political subdivisions and authorizes the RI DEM Director “to advise, consult, and cooperate with the cities and towns and other agencies of the state . . . and other states and interstate agencies . . . in furthering the purposes of” the state Clean Air Act ( i.e., RIGL chapter 23-23). EPA proposes that Rhode Island meets the infrastructure SIP requirements of section 110(a)(2)(M) with respect to the 2012 PM 2.5 NAAQS.

EPA is proposing to approve the elements of the infrastructure SIP submitted by Rhode Island on December 6, 2017, for the 2012 PM 2.5 NAAQS, with the exception of certain aspects relating to the state's PSD program, including 110(a)(2)(C)2, (D)2, and (J)3, which we are proposing to conditionally approve, and section 110(a)(2)(H), which we are proposing to disapprove. In regard to section (H), no further action by EPA or the state is required, however, since federal regulations are already in place that address the gap in the state's submittal with respect to element (H).

Specifically, EPA's proposed action regarding each infrastructure SIP requirement is contained in Table 1 below.

In the above table, the key is as follows:

As noted in Table 1, we are proposing to conditionally approve portions of Rhode Island's infrastructure SIP submittals pertaining to the state's PSD program for the 2012 PM 2.5 NAAQS. Under section 110(k)(4) of the Act, EPA may conditionally approve a plan based on a commitment from the State to adopt specific enforceable measures by a date certain, but not later than 1 year from the date of approval. If EPA conditionally approves the commitment in a final rulemaking action, the State must meet its commitment to submit an update to its PSD program that fully remedies the deficiencies mentioned above under element (C). If the State fails to do so, this action will become a disapproval one year from the date of final approval. EPA will notify the State by letter that this action has occurred. At that time, this commitment will no longer be a part of the approved Rhode Island SIP. EPA subsequently will publish a document in the Federal Register notifying the public that the conditional approval automatically converted to a disapproval. If the State meets its commitment, within the applicable time frame, the conditionally approved submission will remain a part of the SIP until EPA takes final action approving or disapproving the new submittal. If EPA disapproves the new submittal, the conditionally approved infrastructure SIP elements for all affected pollutants will be disapproved. In addition, a final disapproval triggers the Federal Implementation Plan requirement under section 110(c). If EPA approves the new submittal, the PSD program and relevant infrastructure SIP elements will be fully approved and replace the conditionally approved program in the SIP.

EPA is soliciting public comments on the issues discussed in this proposal or on other relevant matters. These comments will be considered before EPA takes final action. Interested parties may participate in the Federal rulemaking procedure by submitting comments to this proposed rule by following the instructions listed in the ADDRESSES section of this Federal Register .

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• This action is not expected to be an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866;

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

I. What action is the Agency proposing?

Through a letter dated November 13, 2017, Georgia EPD submitted a SIP revision for EPA's approval that included several miscellaneous rule amendments. 1 Specifically, the November 13, 2017, SIP revision included changes to Georgia's Air Quality Control Rule 391-3-1-.01—“Definitions,” Rule 391-3-1-.02(4)—“Ambient Air Standards,” Rule 391-3-1-.02(7)—“Prevention of Significant Deterioration of Air Quality,” Rule 391-3-1-.03(6)—“Exemptions,” Rule 391-3- 1-.03(8)—“Permit Requirements,” and Rule 391-3-1-.03(10)—“Title V Operating Permits.”

Through an additional letter dated July 31, 2018, Georgia EPD submitted several SIP revisions that included some miscellaneous rule amendments. 2 Specifically, the July 31, 2018, SIP revisions included changes to Georgia's Air Quality Control Rule 391-3-1-01—“Definitions,” Rule 391-3-1-.02(2)(c)—“Incinerators,” Rule 391-3-1-.02(4)—“Ambient Air Standards,” Rule 391-3-1-.02(12)—“Cross State Air Pollution Rule NO X Annual Trading Program,” Rule 391-3-1-.02(13)—“Cross State Air Pollution Rule SO 2 Annual Trading Program,” Rule 391-3-1-.02(14)—“Cross State Air Pollution Rule NO X Ozone Season Trading Program,” Rule 391-3-1-.03(6)—“Exemptions,” Rule 391-3-1-.03(11)—“Permit by Rule,” Rule 391-3-1-.03(10)—“Title V Operating Permits,” Rule 391-3-1-.11—“Small Business Assistance Administration,” and Rule 391-3-1-.12—“Duties of the Small Business Ombudsman Office.”

Through this proposed rulemaking, EPA is only proposing to approve changes to Rule 391-3-1-.03(6), which addresses exemptions for firefighting equipment from minor new source review (NSR) requirements. EPA is considering and taking action on the other July 31, 2018, SIP revisions involving the remaining changes to Georgia's Air Quality Control Rules through other rulemaking. Additional detail on Georgia's November 13, 2017, and July 31, 2018, SIP revisions and EPA's reasoning for proposing to approve the aforementioned changes is presented below.

In this action, EPA is proposing to approve these revisions by proposing to find that they are consistent with the flexibility traditionally afforded to states in designing their minor NSR programs and are not otherwise prohibited by EPA's federal minor NSR program requirements. Under section 110(a)(2)(C) of the Act—and EPA's implementing regulations at 40 CFR 51.160-164—each SIP must include a program to regulate the construction and modification of stationary sources, including so-called “minor sources.”  3 The purpose of this program is to ensure that each SIP sets forth legally enforceable procedures that enable the state to determine whether the construction or modification of a source would result in a violation of applicable portions of the control strategy or would interfere with attainment or maintenance of a National Ambient Air Quality Standard (NAAQS). See 40 CFR 51.160(a). However, the federal requirements for minor source programs are considerably less prescriptive than those for major sources, allowing the states flexibility to identify the types and sizes of sources that will be subject to the program's review requirements, and the discretion to exempt certain de minimis sources whose emissions are too insignificant to impact attainment or maintenance of a NAAQS. See 40 CFR 51.160(e).

Georgia currently has a SIP-approved program for regulating the construction or modification of minor sources at Rule 391-3-1-.03. The rule also includes exemptions from the minor NSR requirements, found at section (6) of the rule, which includes an exemption for combustion equipment related to training of fire fighters. Specifically, Georgia's current SIP provides an exemption from construction permit requirements for “Fire fighter or other emergency/safety equipment used to train fire fighters.” See Rule 391-3-1-.03(6)(b)(13). 4 However, the exemption does not allow the source category to avoid any other applicable requirement, as that term is defined in 40 CFR 70.2. See Rule 391-3-1-.03(6).

Georgia EPD's November 13, 2017, and July 31, 2018, SIP revisions request that EPA revise the existing exemption for firefighting equipment. First, in its November 13, 2017, revision, Georgia EPD amends the exemption language to explicitly include fire pumps, by revising the language to state: “Fire fighting equipment including fire pumps or other emergency/safety equipment used to train fire fighters.” Additionally, in its July 31, 2018, revision, Georgia EPD further revises the exemption to include equipment used for firefighting or training by either firefighters or other emergency personnel. Specifically, the revised exemption states: “Firefighting equipment, including fire pumps or other emergency/safety equipment, used to fight fires or train firefighters or other emergency personnel.” Georgia states that these revisions clarify its existing interpretation of the exemption.

As noted above, the Act—as well as EPA's implementing regulations at 40 CFR 51.160-164—provides states flexibility in establishing approvable minor NSR programs, including the discretion to exempt certain de minimis sources whose emissions are too insignificant to impact attainment or maintenance of a NAAQS. In this case, EPA believes the exemption of fire pumps and other emergency/safety equipment used for fighting fires from the minor source construction permit requirements would be de minimis (or insignificant) for the reasons described below and as a result, EPA is proposing to find that the revisions are approvable and consistent with the federal minor source regulations at 40 CFR 51.160-164.

In addition, EPA is proposing to find that, under CAA 110(l), the exclusion of fire pumps and other emergency/safety firefighting equipment from minor NSR permitting will not interfere with attainment or maintenance of any NAAQS or with any other applicable requirement of the Act. Such non-interference is based on EPA's belief that any emissions increases that may result from the exclusion of fire pumps and other emergency/safety firefighting equipment from minor NSR permitting requirements would be de minimis or insignificant. This belief is based upon the nature and use of such equipment. For example, fire pumps are only operated in two time-limited circumstances: (1) For testing and maintenance; and (2) during emergency situations, for the purpose of putting out a fire. While testing and maintenance may be periodic and routine, operation of the pumps during those times would be limited. Similarly, operation of fire pumps during a fire emergency would also be time-limited and would present an even more infrequent, unusual operational circumstance. Furthermore, to the extent a fire pump may be used for emergency firefighting purposes, such use would likely aid in the overall reduction of air pollutant emissions associated with fires, such as particulate matter emissions. Finally, EPA notes that while fire pumps may be excluded from minor source permitting requirements, they remain subject to any other applicable federal requirements. 5

Throughout this document “we,” “us,” or “our” refer to the EPA.

Submit your comments, identified by Docket ID No. EPA-R07-OAR-2018-0837, at https://www.regulations.gov. Once submitted, comments cannot be edited or removed from Regulations.gov . The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

The Clean Air Act (CAA) requires that state regulatory agencies implement emission guidelines and associated compliance times using a state plan developed under sections 111(d) of the CAA.

The general provisions for the submittal and approval of state plans are codified in 40 CFR part 60, subpart B and 40 CFR part 62, subpart A. Section 111(d) establishes general requirements and procedures on state plan submittals for the control of designated pollutants.

States have options other than submitting a state plan in order to fulfill their obligations under CAA sections 111(d). If a state does not have any existing units for the relevant emission guidelines, a letter can be submitted certifying that no such units exist within the state ( i.e., a negative declaration) in lieu of a state plan, in accordance with 40 CFR 60.5010. The negative declaration exempts the state from the requirements of subpart B that would otherwise require the submittal of a CAA section 111(d) plan.

On August 6, 1975, the EPA finalized standards of performance for new stationary sources from the phosphate fertilizer industry which included diammonium phosphate fertilizer production plants under the authority of section 111 of the CAA. As required by the CAA 111(d) and 40 CFR part 60, subpart B, each state must adopt and submit a plan for the control of pollutants from existing facilities regulated under section 111(b) New Source Performance Standards following publication of a notice of availability of an applicable emission control guideline unless no such facilities exist within the state. If there are no facilities in the state, the state is required to submit a letter of certifying that fact.

In response to these requirements, the State of Missouri submitted a plan for the control of fluoride emissions from phosphate fertilizer plants on January 3, 1985. The state plan was based on the state regulation 10 CSR 10-3.160 “Restriction of Emissions from Diammonium Phosphate Fertilizer Plants”. At the time of the submittal there was a single operating phosphate fertilizer plant in the State located in Joplin, Missouri. On March 14, 1986, EPA approved the state plan and associated regulation submitted by the State of Missouri pursuant to CAA section 111(d) and 40 CFR part 60, subpart B. Subsequent to this state plan approval, the single phosphate fertilizer plant operating in Joplin, Missouri ceased fertilizer production and dismantled its fertilizer production equipment in between the years of 2003 and 2004.

On December 3, 2018, MoDNR submitted a negative declaration to EPA, certifying that there are no operating phosphate fertilizer plants in Missouri, and requested that the EPA rescind its previous state plan applicable to phosphate fertilizer production facilities. Additionally, MoDNR notified the EPA that it would rescind its 10 CSR 10-3.160 rule that controlled emissions of fluoride from diammonium phosphate fertilizer plants.

The EPA is proposing to accept MoDNR's negative declaration submission made on December 3, 2018 and rescind the State's plan and associated regulation. This action applies to the state's regulatory requirements for existing facilities and not new sources.

The EPA proposes to amend 40 CFR part 62 to reflect receipt of MoDNR's negative declaration letter certifying that there are no phosphate fertilizer production facilities operating in Missouri subject to 40 CFR part 60, subpart V, in accordance with section 111(d) of the CAA. Simultaneously, we are proposing to amend 40 CFR part 62, subpart AA, to remove phosphate fertilizer plants from the list of affected source categories found at 40 CFR 62.6350(c)(1).

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011). This proposed action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely proposes to approve the state's negative declaration as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rulemaking will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this proposed action does not impose an enforceable duty upon State, local, or tribal governments, and does not reduce or eliminate the amount of authorization of Federal appropriations, and because it contains no regulatory requirements applicable to small governments, this proposed action does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This proposed action is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply to this action. This action merely proposes to approve a state negative declaration submitted in response to a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rulemaking also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) because it proposes to approve a state submission in response to a Federal standard.

This proposed action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Burden is defined at 5 CFR 1320.3(b).

For the reasons stated in the preamble, EPA proposes to amend 40 CFR part 62 as set forth below:

Background

This rulemaking is issued under the authority of the Office of Federal Procurement Policy (OFPP) Act which provides the authority for an agency head to issue agency acquisition regulations that implement or supplement the FAR.

VA is proposing to revise the VAAR to add new policy or regulatory requirements and to remove any redundant guidance and guidance that is applicable only to VA's internal operating processes or procedures. Codified acquisition regulations may be amended and revised only through rulemaking. All amendments, revisions, and removals have been reviewed and concurred with by VA's Integrated Product Team of agency stakeholders.

The VAAR uses the regulatory structure and arrangement of the FAR and headings and subject areas are consistent with the FAR content. The VAAR is divided into subchapters, parts (each of which covers a separate aspect of acquisition), subparts, and sections.

The Office of Federal Procurement Policy Act, as codified in 41 U.S.C. 1707, provides the authority for the Federal Acquisition Regulation and for the issuance of agency acquisition regulations consistent with the FAR.

When Federal agencies acquire supplies and services using appropriated funds, the purchase is governed by the FAR, set forth at Title 48 Code of Federal Regulations (CFR), chapter 1, parts 1 through 53, and the agency regulations that implement and supplement the FAR. The VAAR is set forth at Title 48 CFR, chapter 8, parts 801 to 873.

VA proposes to make the following changes to the VAAR in this phase of its revision and streamlining initiative. For procedural guidance cited below that is proposed to be deleted from the VAAR, each section cited for removal has been considered for inclusion in VA's internal agency operating procedures in accordance with FAR 1.301(a)(2). Similarly, delegations of authority that are removed from the VAAR will be included in VA Acquisition Manual (VAAM) as internal departmental guidance. The VAAM is being created in parallel with these revisions to the VAAR and is not subject to the rulemaking process as they are internal VA procedures and guidance. Therefore, the VAAM will not be finalized until corresponding VAAR parts are finalized, and the VAAM is not yet available on line.

This proposed rule would revise the authority citations pertaining to part 806 to include a reference to 41 U.S.C. 1121(c)(3), which is from Title 41, Public Contracts, and speaks to the authority of an executive agency under another law to prescribe policies, regulations, procedures, and forms for procurement that are subject to the authority conferred in the cited section, as well as other sections of Title 41 as shown therein.

We also propose to revise the part 806 authorities to add 41 U.S.C. 1303, an updated positive law codification to reflect additional authority of the VA as an executive agency to issue regulations that are essential to implement Governmentwide policies and procedures in the agency, as well as to issue additional policies and procedures required to satisfy the specific needs of the VA, and to add 41 U.S.C. 1702, which addresses overall direction of procurement policy, acquisition planning and management responsibilities of VA's Chief Acquisition Officer.

We also propose to include a reference to 41 U.S.C. 3304 as the basic authority to award contracts by other than full and open competition. Any other proposed changes to authorities or additional authorities are shown under the individual sections as described in the preamble and reflected in the amendatory language. We also propose to remove 38 U.S.C. 501 as it is a more general authority for the Secretary to utilize to prescribe all rules and regulations. The title 41 authority is more appropriate to cite when publishing the VAAR.

We propose to add 806.004-70, Definition, to establish that as used in part 806, “health-care resource(s)” has the same definition as that provided in VAAR 873.102. VAAR 873.102 provides that “health-care resource” includes hospital care and medical services (as those terms are defined in section 1701 of title 38 United States Code (U.S.C.)), any other health-care service, and any health-care support or administrative resource, including the use of medical equipment or space. (38 U.S.C. 8153). A future rule may contain revisions to VAAR part 873 which also might include any updated definition for “health-care resource.”

We propose to add subpart 806.1—Full and Open Competition, and section 806.102, Use of competitive procedures, to address the application of 38 U.S.C. 8127 to competitive General Services Administration (GSA) and VA Federal Supply Schedules.

We propose to add subpart 806.2—Full and Open Competition After Exclusion of Sources, which would contain two sections: 806.203, Set-asides for small business concerns, which directs attention to subparts 819.5 and 819.70 for VA's policies on set-asides for small business concerns, and 806.270, Set-asides for verified Veteran-owned small businesses.

In 806.270, we propose to set-forth VA's authority under VA's supplement to FAR part 6—VAAR part 806, and the requirement mandated by 38 U.S.C. 8127, to conduct set-asides for Veteran-owned small businesses whenever market research provides the contracting officer with a reasonable expectation of receiving two or more offers/quotes from eligible and verified service-disabled veteran-owned small businesses (SDVOSBs) or veteran-owned small businesses (VOSBs), and award can be made at a fair and reasonable price that offers best value to the Government (VA Rule of Two). This section would also state that the requirement to set aside procurements for Veteran-owned small businesses applies to all contracts under this regulation, including orders under interagency acquisition vehicles such as the Federal Supply Schedules (FSS), Governmentwide acquisition contracts (GWACs), and multi-agency contracts. We propose to also include language in paragraph (c) that contracting officers shall utilize the authority in paragraph (a), for set-asides to verified SDVOSBs and VOSBs, over other set-asides authorized in FAR subpart 6.2. The reason is the statutory requirement in 38 U.S.C. 8127-8128 for the VA Rule of Two which provides VA a unique authority for set-asides that includes both categories of Veteran-owned small businesses. While FAR 6.206, Set-asides for service-disabled veteran-owned small business concerns, does provide for an SDVOSB set-aside, SDVOSBs who may receive contract awards under that authority self-represent their status, whereas eligibility for and participation in the VA SDVOSB set-aside program requires verification and inclusion in the VA, Office of Small and Disadvantaged Business Utilization (OSDBU), Center for Verification and Evaluation, Vendor Information Pages (VIP). Additionally, the FAR does not have a specific set-aside program for VOSBs, while VA does, which also requires that in order to be eligible for and to participate in the program, VOSBs must also go through a thorough verification program and be included in VA OSBDU's VIP. This section also proposes to include language that would provide that for Indefinite-Delivery contracts, when a set-aside is restricted to verified SDVOSBs or VOSBs, it satisfies competition requirements.

In subpart 806.3—Other Than Full and Open Competition, we propose to revise the entire subpart to add specific reference to VA's authority for noncompetitive procedures for verified Veteran-owned small businesses and to clarify existing authorities regarding such noncompetitive procedures. The revised subpart would also clarify existing statutory authority for other VA unique authorities and update new Title 41 citations and require other specific citation requirements.

We propose to amend section 806.302, Circumstances permitting other than full and open competition, to add several sections. We propose to revise 806.302-5, Authorized or required by statute, to remove its text and retain the title. The removed text has been revised and moved to 806.302-571.

Under 806.302-5, we propose to add two sections: 806.302-570 and 806.302-571. We propose to add 806.302-570, Noncompetitive procedures for verified Veteran-owned small businesses, to provide coverage of the authority to enter into contracts non-competitively, when specifically authorized under the VA Veterans First Contracting Program in accordance with VAAR 819.7007 or 819.7008. Paragraph (a) provides that justification and approval requirements of FAR 6.303 and 6.304, and internal agency review and approval thresholds set forth in VA internal procedures apply. Paragraph (b) provides the required updated 41 U.S.C. 3304(a)(5) citation, the specific authority under 38 U.S.C. 8127(b), and states that contracting officers may award a contract to a VIP verified SDVOSB first, then VOSB, using other than full and open competition, for contracts at or below the Simplified Acquisition Threshold (SAT). Paragraph (c) provides the proposed noncompetitive procedures for contracts above the SAT, as well as specific limitations that apply for actions over the SAT: the proposed SDVOSB or VOSB business must be responsible; the anticipated award price of the contract, including options, will exceed the SAT, but will not exceed $5 million; and, contract award can be made at a fair and reasonable price that offers best value to the United States.

We also propose to add 806.302-571, Authorized or required by statute—VA unique authorities, which would contain the statutes previously listed in 806.302-5 and provide policy under the statutes to make awards by other than full and open competition. Paragraph (a) provides the updated Title 41 authority—41 U.S.C. 3304(a)(5), updated from the moved coverage under 806.302-5. Paragraph (b)(1) would provide that full and open competition is not required for the acquisition of prosthetic appliances and services based on the authority under 38 U.S.C. 8123. Paragraph (b)(2) would provide the existing policy for the acquisition of commercial health-care resources, use of medical equipment or space, or research acquired from an institution affiliated with VA under the authority set forth in 38 U.S.C. 8153(a)(3)(A). Paragraph (b)(3) would provide policy for the acquisition of commercial health-care resources, use of medical equipment or space from other than an affiliated institution, but only when conducted in accordance with simplified procedures in VAAR part 873, Simplified Acquisition Procedures for Health-Care Resources, under the authority set forth in 38 U.S.C. 8153(a)(3)(B). Paragraph (b)(4) would provide the authority under 38 U.S.C. 8153(a)(3)(C) for the sole source acquisition of commercial health-care resources, the use of medical equipment or space, when not acquired from an affiliated institution in accordance with paragraph (b)(2). The justification and approval requirements of FAR 6.303 and agency internal review procedures apply.

806.302-571, paragraph (c), would require that contracts awarded using the authority set forth under paragraph (a), with the exception of acquisitions authorized under paragraph (b)(2) of this section, shall be supported by the written justifications and approvals described in FAR 6.303 and 6.304, and VA internal agency procedures.

806.302-571, paragraph (d), would incorporate an updated Title 41 citation reference: 41 U.S.C. 3304(a)(5), and would also permit VA to procure certain supplies and services and require contracting officers, pursuant to FAR 6.302-5(c)(2)(ii), to comply with written justification and approval requirements set forth in FAR 6.303 and 6.304, citing 41 U.S.C. 3304(a)(5) and the applicable statute. Specifically, 806.302-571(d) contains authorities previously under 806.302-5 and would continue existing policy to allow VA to continue to enter into contracts for the following:

Scarce medical specialist services through contracts with 1) schools and colleges of medicine, osteopathy, dentistry, podiatry, optometry, and nursing; 2) clinics; and 3) any other group or individual capable of furnishing such scarce medical specialist services at VA facilities, to include the services of physicians, dentists, podiatrists, optometrists, chiropractors, nurses, physician assistants, expanded-function dental auxiliaries, technicians, and other medical support personnel, in accordance with the authority of 38 U.S.C. 7409. We also propose to remove language that was previously codified that restricted such contracts to institutions affiliated with VA under 38 U.S.C. 7302 as no such restriction is contained in the statute for 38 U.S.C. 7409;

Purchase or sell merchandise, equipment, fixtures, supplies and services for the operation of the Veterans Canteen Service under the authority of 38 U.S.C. 7802(f);

Contracts or leases for the operation of parking facilities authorized by the Secretary or designee under the authority of 38 U.S.C. 8109(f);

Contracts for laundry and other common services, such as the purchase of steam, negotiated with non-profit, tax-exempt educational, medical, or community institutions, under the authority of 38 U.S.C. 8122(c), when specifically approved by the Secretary or designee and when such services are not reasonably available from private commercial sources; and

Contracts or agreements with private or public agencies or persons, including contracts for services of translators under the authority of 38 U.S.C. 513.

We propose to remove the authority currently listed in 806.302-5(a)(1), concerning VA ability to procure scarce medical specialist services, as an exception to full and open competition and place this authority in 806.302-571(d)(1) to require a written justification and approval before procuring services using the 38 U.S.C. 7409 authority. While 38 U.S.C. 7409 states that VA may procure scarce medical specialist services from certain persons and institutions identified in the statute, the statute does not contain language which expressly exempts these types of procurements from the competition requirements found in 41 U.S.C. 3301 et. seq. We propose to require that the use of this authority comply with written justification and approval requirements set forth in FAR 6.303 and 6.304 and cite 41 U.S.C. 3304(a)(5) and 38 U.S.C. 7409.We propose to remove 806.302-7, Public interest, as it provides internal procedural guidance not having a significant effect beyond the internal operating procedures of the VA (see FAR 1.301(b)) and which will be moved to the VAAM.

We propose to remove 806.304, Approval of the justification, as it provides internal procedural guidance not having a significant effect beyond the internal operating procedures of the VA (see FAR 1.301(b)) and which will be moved to the VAAM.

We propose to revise subpart 806.5—Competition Advocates, to amend the title to Advocates for Competition to conform to the revised title in FAR part 6.

We propose to revise 806.501, Requirement, to identify the Deputy Senior Procurement Executive as the VA Advocate for Competition.

We propose to remove 806.570, Planning requirements, as it provides internal procedural guidance not having a significant effect beyond the internal operating procedures of the VA (see FAR 1.301(b)) and which will be moved to the VAAM.

Title 48, Federal Acquisition Regulations System, Chapter 8, Department of Veterans Affairs, of the Code of Federal Regulations, as proposed to be revised by this rulemaking, would represent VA's implementation of its legal authority and publication of the VAAR for the cited applicable parts. Other than future amendments to this rule or governing statutes for the cited applicable parts, or as otherwise authorized by approved deviations or waivers in accordance with FAR subpart 1.4, Deviations from the FAR, and as implemented by VAAR subpart 801.4, Deviations from the FAR or VAAR, no contrary guidance or procedures would be authorized. All existing or subsequent VA guidance would be read to conform with the rulemaking if possible or, if not possible, such guidance would be superseded by this rulemaking as pertains to the cited applicable VAAR parts.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits of reducing costs, of harmonizing rules, and of promoting flexibility. E.O. 12866, Regulatory Planning and Review defines “significant regulatory action” to mean any regulatory action that is likely to result in a rule that may: “(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive order.”

VA has examined the economic, interagency, budgetary, legal, and policy implications of this regulatory action, and it has been determined this rule is a significant regulatory action under E.O. 12866, because it may create a serious inconsistency or otherwise interfere with an action taken or planned by another agency and raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive order.

VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's website at http://www.va.gov/orpm by following the link for VA Regulations Published from FY 2004 Through Fiscal Year to Date.

This proposed rule is not expected to be subject to the requirements of E.O. 13771 because this proposed rule is expected to result in no more than de minimis costs.

This proposed rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

This proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This proposed rule would generally be small business neutral. The overall impact of the proposed rule would be of benefit to small businesses owned by Veterans or service-disabled Veterans as the VAAR is being updated to remove extraneous procedural information that applies only to VA's internal operating procedures. VA estimates that no cost impact to individual business would result from these rule updates. On this basis, the adoption of this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. Therefore, under 5 U.S.C. 605(b), this regulatory action is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal Governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local, and tribal Governments or on the private sector.

The Secretary of Veterans Affairs approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert L. Wilkie, Secretary, Department of Veterans Affairs, approved this document on October 29, 2018, for publication.

In a notice of proposed rulemaking (NPRM) served on December 21, 2018, the Board proposed new procedures for water carriers operating in the noncontiguous domestic trade to electronically publish, file, and keep tariffs available for public inspection. Notice of the proposed rulemaking was published in the Federal Register on December 26, 2018 (83 FR 66229).

In the NPRM, the Board directed comments to be submitted by January 25, 2019, and reply comments to be submitted by February 25, 2019. During the partial shutdown of the Federal government from December 22, 2018 through January 25, 2019, all deadlines requiring the submission of material to the Board, including the deadlines in this proceeding, were tolled. Comments on the NPRM will be due by February 4, 2019, and reply comments will be due by March 4, 2019.

It is ordered:

1. Comments are due by February 4, 2019. Reply comments are due by March 4, 2019.

2. Notice of this decision will be published in the Federal Register .

3. This decision is effective on its service date.